Discretion

   HCJ 4804/94

1. Station Film Co.
2. Gil Besarev

v.

1. The Film Review Board
2. Minister of the Interior

The Supreme Court Sitting as the High Court of Justice

[January 9, 1997]

Before President A. Barak and Justices E. Mazza, M. Cheshin

Facts: Respondent no. 1 decided to allow the screening of the film "L'Empire Des Sens," on the condition that several scenes be omitted from the film, and that the film only be shown to adults. According to respondent no. 1, these scenes were of a pornographic nature, and there was a near certainty that screening these parts of the film would cause serious, grave and severe harm to societal sensibilities and public morality. Petitioner accepted that the film could only be shown to adults. In this petition, it contests the deletion of the omitted scenes, except for scenes in which minors appeared.

Held: Freedom of expression is a fundamental right in Israel. The Court held, however, that this freedom may not be extended to pornography if there exists a near certainty that the pornography would cause serious, grave and severe harm to public order. Whether a work is pornographic should be judged by looking to the work as a whole, when the pornographic parts are seen as part of the entire work. It is not enough that the entire work be seen as having artistic merit. Instead, the pornographic parts of the work must contribute towards the work as a whole. The Court held that respondent no. 1 did not use the "work as a whole" test when evaluating the film. Instead, respondent evaluated the pornographic parts of the film in isolation from the film as a whole. As such, respondent's order to delete the pornographic parts of the film was invalid, except for the portions which the petitioner had agreed to delete.

Israeli Supreme Court Cases Cited:

[1]   Crim. App. 255/68 The State of Israel v. Ben Moshe, IsrSC 22(2) 427

[2]   HCJ 153/83 Levy v. Southern District Commander of the Israeli Police Force, IsrSC 38(2) 393

[3]   CA 723/74 "Ha’aretz" Newspaper Publications v. The Israel Electric Company, IsrSC 31(2) 281

[4]   HCJ 73/53 Kol Ha’Am v. The Minister of the Interior, IsrSC 7 871

[5]   CA 105/92 Re’em Engineers and Contractors v. The Municipality of Nazareth-Illith, IsrSC 47(5) 189

[6]   HCJ 243/62 Israeli Film Studios v. Gary, IsrSC 16 2407

[7]   PCA 4463/94 PIA 4409/94 Golan v. Prison Services, IsrSC 50(4) 136

[8]   HCJ 399/85 Kahane v. Managing Committee of the Broadcasting Authority, IsrSC 41(3) 255

[9]   HCJ 372/84 Klopfer-Nave v. The Minister of Education and Culture, IsrSC 38(3) 232

[10] HCJ 806/88 Universal City Studios  v. The Film and Play Review Board, IsrSC 43(2) 22

[11] HCJ 606/93 Advancement of Entrepreneurship and Planning (1981) v. The Broadcasting Authority, IsrSC 48(2) 1

[12] IA 2/84 Neiman v. Chairman of the Elections Committee for the Eleventh Knesset, IsrSC 39(2) 225

[13] Crim. App. 677/83 Borochov v. Yeffet, IsrSC 39(3) 205

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

[15] FH 9/77 The Israel Electric Company v. "Ha’aretz" Newspaper Publishing Company Ltd., IsrSC 32(3) 337.

[16] HCJ 2481/93 Dayan v. Jerusalem District Commander, IsrSC 48(2) 456.

[17] PLA 7504/95 Yassin v. Party Registrar, IsrSC 50(2) 45.

[18] Crim. App. 126/62 Dissenchik v. The Attorney-General, IsrSC 17 169.

[19] HCJ 411/89 The Temple Mount Faithful and Land of Israel Movement v. The Jerusalem District Police Commander, IsrSC 43(2) 17.

[20] HCJ 448/85 Daher v. The Minister of the Interior, IsrSC 40(2) 701

[21] HCJ 243/81 Yeki Yosha v. The Film and Play Review Board, IsrSC 35(3) 421

[22] HCJ 89/80 Ohayon v. The Play and Film Review Board, IsrSC 34(2) 530

[23] Crim. App. 495/69 Omer v. The State of Israel, IsrSC 24(1) 408

[24] HCJ 175/71 Abu-Ghosh/Kiryat Yearim Music Festival v. The Minister of Education and Culture, IsrSC 25(2) 821

[25] CA 448/60 Lev v. The Central "Mashbir" Ltd., IsrSC 16 2688

[26] HCJ 549/75 Noah Films Ltd. v. The Film Review Board, IsrSC 30(1) 757

[27] FH 3/87 The Film Review Board v. Laor, IsrSC 41(2) 162

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

[29] HCJ 6218/93 Dr. Cohen  v. The Israeli Bar Association, IsrSC 49(2) 529

[30] Crim.App. 3520/91 Turgeman v. The State of Israel, IsrSC 47(1) 441

[31] HCJ 241/60 Kardosh v. The Registrar of Companies, IsrSC 15 1151

[32] HCJ 742/84 Kahana v. The Speaker of the Knesset, IsrSC 39(4) 85

[33] HCJ 758/88 Kendall v. The Minister of the Interior, IsrSC 46(4) 505

[34] HCJ 146/59 Cohen v. The Minister of the Interior, IsrSC 14 283

[35] HCJ 92/56 Weiss v. The Chairman and Members of the Legal Council, IsrSC 10 1592

[36] HCJ 176/58 Parcel 11 Block 6605 Co. Ltd. v. The Minister of Development, IsrSC 13 1109

[37] HCJ 383/73 Avidan v. Gary, Chairman of the Film and Play Review Board, IsrSC 28(2) 766

[38] HCJ 193/58 Rosenberg Orthopedics Company v. The Chief Certified Physician, The Department of Rehabilitation, IsrSC 13 1654

[39] HCJ 162/72 Kinross v. The State of Israel, IsrSC 27(1) 238

[40] HCJ 260/60 Forum Film  v. The Film and Play Review Board, IsrSC 15 611

[41] HCJ 807/78 Ein Gal v. The Film and Play Review Board, IsrSC 33(1) 274

[42] HCJ 351/72 Keinan v. The Film and Play Review Board, IsrSC 26(2) 811

[43] PL Crim. App. 1127/93 The State of Israel v. Klein, IsrSC 48(3) 485

[44] HCJ 73/85 "Kach" Faction v. The Speaker of the Knesset, IsrSC 39(3) 141

[45] HCJ 910/86 Ressler v. The minister of Defence, IsrSC 42(2)  441

Israeli District Court Cases Cited:

[46] DC (Haifa) 404/82 Yishayahu v. The State of Israel, 1984 (2) D.C. 522.

Irish Cases Cited:

[47] Irish Family Planning Association v. Ryan [1979] I.R.J. 295.

United States Cases Cited:

[48] Jacobellis v. State of Ohio, 378 U.S. 184 (1964).

[49] Roth v. United States, 354 U.S. 476 (1951).

[50] Miller v. California, 413 U.S. 15 (1973).

[51] Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

[52] United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1934).

[53] Grove Press  v. Christenberry, 276 F.2d 433 (2d Cir. 1959).

[54] Memoirs v. Massachusetts, 383 U.S. 413 (1966).

[55] Freedman v. Maryland, 380 U.S. 51 (1965).

[56] Kaplan v. California, 413 U.S. 115 (1973).

[57] Fort Wayne Book v. Indiana, 489 U.S. 46 (1989).

English Cases Cited:

[58] The Queen v. Hicklin (1868) 3 Q.B. 360.

German Cases Cited:

[59] 67 BverfGe 218 (1984).

[60] “17 Mar. 1977” 86 Archiv fur Urheber– , Film, Fumk– , und Theaterrecht (1980) 204.

Canadian Cases Cited:

[61] Re Ont. Film & Video and Ont. Bd. Of Censors [1983] 41 O.R. 2d 583.

[62] R. v. Butler [1992] 89 D.L.R. 4^th  449.

[63] The Queen v. Towne Cinema Theaters Ltd. [1985] 18 D.L.R. 4^th  1.

Jewish Law Sources Cited

[64] Genesis 2:9, 25; 3:7, 10; 22:12

[65] Ecclesiastes 3:19

[66] Babylonian Talmud, Tractate Shabbat 33a

[67] Babylonian Talmud, Tractate Avoda  Zara 5a

For the petitioner—A. Tzafrir

For the respondent—S. Nitzan (Office of the State Attorney)

JUDGMENT

President A. Barak

The Film Review Board was asked to grant a permit for the film “L'Empire Des Sens.” The Board conditioned the issuance of the permit on the deletion of certain parts of the movie, which was to be shown to adults only. According to the Board, the targeted sections are of a pornographic nature and there is near certainty that allowing them to be viewed will cause serious, grave and severe harm to societal sensibilities and public morality. In the opinion of the film’s distributor, the film has artistic value, and should remain intact. At base, this petition presents the need to decide between two conflicting positions, between an argument that focuses on the problems of pornography, and an argument that focuses on artistic merit.

The Film

1. “L'Empire Des Sens” is a Japanese-French film, directed by the Japanese director Nagissa Oshima. The film deals with the love between a girl named Sadda and her lover-master Kichi San. The film examines the couple’s relationship. This relationship revolves around the couple’s sexual encounters, which take on increasing intensity. Their quest for challenges to satisfy their lust ends in death, as Sadda chokes her lover in the course of intercourse. At the end, she cuts off his sexual organ with a knife. During the film, there are shots of intercourse, with depictions of the sex act.

The Facts

2. The petitioners are the distributors of the film “L'Empire Des Sens." They applied to the Film Review Board [hereinafter the Board] for a permit to screen the film; the Board had rejected similar requests by other distributors in the past. During its meeting on April 18, 1994, the Board viewed the film and decided unanimously not to grant the requested permit. In a notice delivered to the petitioners, the Board opined that “the film exceeds the limits of good taste with its excessive pornography, and contains scenes capable of arousing feelings of revulsion." A few months later, on July 11, 1994, the Board reexamined its decision. The petitioners’ arguments were heard, and a discussion was held. This time, differences of opinion surfaced among the Board members. Some members pointed to the film’s artistic quality, the caliber and prominence of the director, and to the awards that the film received at various festivals. Others claimed that the film was an obscenity, that there was nothing artistic about it, and that even if it did have artistic value, such value was not sufficient to negate the film’s pornographic character.

The majority decision was to disallow the film’s screening. Shortly thereafter, on August 8, 1994, the Board once again discussed the film. Once more, some Board members made reference to the film’s artistic value. Others, however, pointed to differences of opinion regarding the film’s actual artistic value. This time too the Board decided to disallow the film’s screening. In its decision, the Board stated that its refusal was based on “the excess of intercourse scenes with the exposure of sexual organs, penetration, sexual abuse involving children, and the like." Nevertheless, in his letter to the petitioners, the Board’s Chairman stated: “the Board might find a way to approve the screening of the film if you were to remove about eight sections."

3.    Following the Board’s decision, the petition before us was filed. After its submission, the Board convened to discuss the film on September 11, 1994. By a majority decision, the Board decided to approve the screening of the film for viewers of eighteen years of age and up. The Board conditioned this permit upon the removal of nine sections, which, in total, amount to several minutes of the film. According to the Board, the screening of these sections is certainly capable of causing serious, grave and severe injury to societal sensibilities and public morality. The petitioners accept the Board’s decision to restrict the film to adult viewers, but take issue with the demand to cut several scenes, save for the sections involving the appearance of minors.

The Parties’ Submissions

4.    Petitioners raised a number of arguments before this Court. First, they claimed that both the Board’s working procedures and its composition were flawed. The Board, they argued, exceeded its authority by taking into account aspects not germane to the issue. Its initial decision to disallow the film’s screening resulted from the “limits of good taste” test. This test has been invalidated under case law. The most recent decision to permit the screening of the film under certain conditions, they argue, was intended to “legitimize” its decision in the eyes of this Court. Petitioners further contend that the Board did not seriously consider the matter of the existence of a risk of injury to protected values, the intensity of the danger, and the degree of its probability. Regarding the Board’s composition, it was argued that the Board should not include people who are or have ever been government officials. It was also asserted that the Board does not constitute a representative cross-section of the public. Thus, it was contended that, in this situation, the Board does not represent the public and does not voice its concerns.

Second, it is submitted that the criteria that guided the Board in its decision were erroneous. According to this argument, the Board’s task was to examine whether screening the film, in its entirety, entailed a near certainty of serious, grave and severe injury to the public order. Instead, the Board began examining the effect of the screening of certain sections—in isolation of their place in the film as a whole. Based on the proper test, petitioners argue, it cannot be said that the screening of the film in its entirety entails a serious, grave and severe injury to societal morality. According to this test, petitioners assert, the film should not be considered pornographic. It is imbued with social– artistic values that redeem the controversial sections. The film’s message, context and artistic value distinguish it from a pornographic film that merely deals with sex. According to the argument advanced, proof of the artistic value of "L'Empire Des Sens" can be found in the international artistic recognition the film enjoyed, including the awards it has won, and the opinion of film critics and lecturers who have joined this petition. Furthermore, in terms of the asserted harm, petitioners claim that one must take into account the fact that the film will be screened before an adult audience only. The audience is not captive; the public is accustomed to permissiveness and openness, and, in any case, has access to material that features sex acts similar to those in the film under discussion. The petitioners also point out that the film has already been screened publicly, on February 28, 1995, on the European culture channel “Arte," which could be received in the Jerusalem area and in Ramat Gan. No resulting injury was shown. According to the petitioners, all of these facts illustrate the appropriateness of striking down the Board’s decision.

Third, petitioners argue that the State must not be allowed to interfere with adults’ decisions to watch films importing issues of morality and sexuality. The Board’s decision may be characterized as a form of paternalism, which has no place in a democratic country. Alternatively, petitioners argue for the adoption of a more stringent test for limiting freedom of expression, such as the test of clear and present danger, which would be more appropriate.

Fourth, even if the Board is of the opinion that, by screening the film, the petitioners will violate Section 214 of the Penal Law-1997, thereby committing the criminal offence of the publication and display of obscene material, petitioners argue that the criminal offense is not a germane consideration. The crucial nature of freedom of expression means that only post- facto punishment can be imposed, rather than prior restraint of the expression. Further, it must be left to the courts to decide whether a criminal offence has in fact been committed. Alternatively, it was argued that the artistic merit of the work in its entirety redeems the disputed sections, so that they do not constitute obscenity. The film is a work of art.

Fifth, petitioners claim that they were discriminated against by the Board, which approved the screening of other films containing explicit sex scenes, such as "Last Tango in Paris," “Clockwork Orange," "Rising Sun," and "Conan the Barbarian."

Finally, petitioners conclude that the Board did not attach appropriate weight to freedom of expression, particularly in view of the enactment of the Basic Law: Human Dignity and Liberty. They argue that freedom of expression is part of human dignity, and that the individual must not be denied the right to decide whether he wishes to view a particular film. The petitioners also point out that the Board’s claim that they are protecting human dignity by prohibiting the screening of the disputed sections is an argument first raised in this petition. Indeed, there is no mention of this reason in any of the Board’s discussions or decisions.

5.    In their submissions, the respondents defend the Board’s decision. Their arguments are as follows. First, that the Board’s composition reflects the diverse opinions of the Israeli population on the matter and is therefore representative. Most of its members are not civil servants. In addition, the Board claims to have acted within the scope of its authority. Its decision is reasonable. Its considerations were not “non-germane," but rather relevant and commensurate with the case law on the matter. Indeed, the case law instructs that when it is nearly certain that allowing freedom of expression in a particular instance will cause serious, grave and severe injury to societal sensibilities and public morality, the former must give way to the latter. Based on this criterion, the Board decided that, if the film is to be screened, the disputed sections must be deleted. The respondents stress that, in applying this criterion, the Board took into account the harm to the enlightened public’s sensibilities and to current societal morality, rather than the feelings of extreme minorities. In their view, the Board adopted the “least restrictive means” for impairing freedom of expression, as the film was approved, rather than censored, and the parts that need to be deleted are small in length and number. In so doing, the Board by no means disregarded freedom of expression. Instead, it gave it significant weight. The respondents conclude by stating that the Board’s decision strikes the proper balance between the conflicting interests in the matter.

 Second, they point out that in reaching its decision, the Board took into account the fact that some of the disallowed sections contain humiliating scenes that entail certain and severe injury to man’s dignity. The reference here is to scenes that feature close-ups of a man’s sexual organ being cut off or a woman’s clitoris being split. The same applies to scenes depicting sexual abuse of minors or the elderly.

Third, respondents note that the Board weighed the film’s artistic value. Conflicting opinions regarding whether the film should be classified as art or pornography were presented to the Board. According to most of the Board members, the film is devoid of artistic value. Moreover, they argue that even if the film as a whole has artistic value, the disqualified sections themselves lack such artistic value; consequently, cutting these particularly offensive scenes from the film will not harm the film’s artistic value. Their approach invites us to examine the redeeming artistic value of the individual sections, rather than to consider whether the film’s general value, as a whole, is capable of redeeming the individual sections. In addition, the respondents maintain that even if the artistic value of the individual sections were proven, this value would have to yield in view of the certain and severe injury to societal sensibilities and public morality which would ensue were those sections to be screened. The Board’s members are not art critics, and neither is the public. The film’s artistic value is a relevant, but not singular, consideration. We are not discussing art, and in any event, artistic freedom must occasionally yield to the values that clash with it.

Fourth, it is submitted that the expression’s criminality is a germane consideration. The law, at the very least, can serve as an indicator of the public’s tolerance level. According to the Board, the controversial sections are tantamount to an exhibition of obscenity, in violation of Section 214 of the Penal Law. The Board attached significant, although not determinative, weight to this consideration.

Fifth, as per the Board’s contention, there is nothing to support the discrimination argument advanced by the petitioners. Indeed, the Board has never permitted the screening of segments as problematic as those at issue here. Regarding the assertion that the obscenity law is not being enforced, no factual proof has been offered in support of this argument. Moreover, the fact that others may violate this law by no means compels the Board to grant a permit in this case. The respondent’s conclusion, therefore, is that the Board’s decision is a reasonable one. The Court must not replace the Board’s discretion with its own. As long as the institution of the censor exists, we must not empty the Board’s authority of all substance. Thus, they argue, the petition must be rejected.

Concerning Freedom of Expression and its Restrictions

6.    Freedom of expression is a fundamental right in Israel. It is “democracy’s most cherished principle.” Crim. App. 255/68 The State of Israel v. Ben Moshe [1] (Agranat, J.). It occupies a place of honor in the “shrine of fundamental human rights.” HCJ 153/83 Levy v. Southern District Commander of the Israeli Police Force [2]. It constitutes a “supreme right." CA 723/74 “Ha’aretz" Newspaper Publications Ltd. v. Israel Electric Company Ltd. [3] (Shamgar, P.); a “superior right.” HCJ 73, 87/53 Kol Ha’Am. v. Minister of Interior [4] (Agranat, J.) “It is an integral part of our judicial ethos” CA 105/92 Re’em Engineers and Contractors v. Municipality of Nazareth-Illith [5]. The freedom of expression in Israel was first recognized by the Courts as being “among those fundamental rights that are not written in a book." Rather, they stem directly from the nature of our country as a freedom-loving democracy," HCJ 243/62 Israel Film Studios Ltd. v. Gary [6], at 2415 (Landua, J.). In several obiter dicta, a number of judges—myself included—expressed the view that today, freedom of expression enjoys constitutional status, as part of the right to human dignity anchored in the Basic Law: Human Dignity and Liberty. See CA 4463/94 PLA 4409/94 Golan v. Prison Services [7] (Mazza, J.).

Three rationales form the basis for recognizing freedom of expression as a fundamental right. The first rationale is the desire to expose the truth:

Freedom of expression must be ensured in order to allow for different and varied views and ideas to compete with each other. From this competition—and not from the regime’s dictate of a single ‘truth'—shall the truth surface and emerge. For, in the end, the truth shall be victorious in the battle of ideas.

HCJ 399/85 Kahane v. Broadcast Authority [8], at 272

The second rationale is based on the need for human self-fulfillment. “The spiritual and intellectual development of man is based on his ability to freely formulate his world views.” HCJ 399/85 Kahane v. Managing Committee of the Broadcasting Authority [8] 273. Lastly, freedom of expression is a prerequisite for democracy. Thus, “the free voicing of opinions and the unrestricted exchange of ideas among people is a sine qua non for the existence of a political and social regime in which the citizen can weigh—without fear—what is required, to the best of his understanding, for the benefit and welfare of both the public as well as the individual, and how to ensure the continued existence of the democratic regime and the political framework in which it operates.” HCJ 372/84 Klopfer-Nave v. Minister of Education and Culture [9], at 238 (Shamgar, P.).

7. Like other freedoms enjoyed by the individual in a democratic country, freedom of expression is not “absolute." Thus, we recognize the possibility, and even the need, to restrict freedom of expression in order to satisfy other values which society wishes to realize. Indeed, we distinguish between the scope of freedom of expression as a fundamental human right (“the issue of scope”) and the scope of the protection given to freedom of expression (“the issue of protection”). See HCJ 806/88 Universal City Studios. v. The Film and Play Review Board [10].

According to our legal tradition, freedom of expression enjoys a broad scope. HCJ 606/93 Advancement of Entrepreneurship and Planning (1981) v. The Broadcasting Authority [11] Hence, freedom of expression as a constitutional right extends to every form of expression. It extends to any activity seeking to convey a message or meaning. It extends to any expression of a political, literary or commercial nature. The expression may take the form of words or behavior, symbolic or otherwise. With respect to the scope of freedom of expression, we do not examine whether the expression is truthful or false; no one scrutinizes its content; no one examines its consequences. “Freedom of expression extends to every expression, regardless of its content, impact and the manner in which it is expressed.” Universal City [10], at 34; see also Re Ont. Film & Video and Ont. Bd. of Censors [1983] 41 O.R. 2d 583 [61]. As President Shamgar has noted:

The exchange of ideas, the voicing of perspectives, public debate, and the will to know, to learn and to convince: all these are educational tools at the disposition of every opinion, every perspective, and every belief in a free society.

IA 2/84 Neiman v. Chairman of the Elections Committee for the Eleventh Knesset [12] 278 (emphasis added)

Thus, an expression entailing defamation is “covered” by the scope of freedom of expression. See Crim. App. 677/83 Borochov v. Yeffet [13]. Expression that offends is “covered” by freedom of expression. HCJ14/86 Laor v. The Film and Play Review Board [14]. An expression that constitutes a criminal offence is “covered” by freedom of expression. HCJ 399/85, supra [8].

8.    A democratic regime, which seeks to protect the entire spectrum of human liberties and to further social goals, will not protect the full scope of freedom of expression. Recognition that certain expression is covered by freedom of expression does not guarantee that that the expression shall be protected. Thus, in order to advance human rights such as a person’s dignity, good name, property, privacy and occupational freedom, we allow freedom of expression to be infringed. See FH 9/77 The Israel Electric Company v. "Ha’aretz" Newspaper Publishing Company Ltd. [15]; HCJ 153/83 supra [2]; HCJ 2481/93 Dayan v. Jerusalem District Commander [16]. We allow freedom of expression to be infringed in order to advance societal goals, such as ensuring country’s very existence and democratic nature, as well as protecting the integrity of the judicial system, as well as public peace and security. See IA 2/84 supra [12]; HCJ 399/85 supra [8]; PLA 7504/95 Yassin v. Party Registrar [17]; Crim. App. 126/62 Dissenchik v. The Attorney General [18]; HCJ 411/89 The Temple Mount Faithful and Land of Israel Movement v. Jerusalem District Police Commander [19]. Freedom is not anarchy. Without order there is no liberty.

9.    Restrictions on freedom of expression take different forms. There are those restrictions known as prior restraints. Other restrictions punish expression only subsequent to its publication. Another sort of restriction would require permits to be obtained. The most severe of these is, of course, prior restraint. At times, such restriction is required by reason of the expression’s content. We prohibit an expression which causes defamation or entails harmf to the integrity of the judicial system. Sometimes, the expression's effect necessitates the restriction. Thus, we restrict the freedom to protest—regardless of the message conveyed by a particular demonstration—in order to protect the freedom of movement. These restrictions derive from the societal significance of the expression, on the one hand, and the values, interests and principles with which freedom of expression clashes, on the other. Moreover, political freedom of expression is not equivalent to its commercial counterpart. See Advancement, supra [11], at 13. Harm to state security is not on the same footing as harm to the freedom of movement. Indeed, the substance of the restrictions is the product of a balance between aspects of freedom of expression and other human rights and the public good. It is related to an evaluation of the social significance of the various values. It is based on the idea that infringements on freedom of expression can only be for a worthy purpose and may not exceed the necessary measure. Thus, in principle, we seeks to establish “a value-oriented guiding principle," which distances itself from any “chance paternalistic criterion.” FH 9/77 supra [15], at 361 (Shamgar, J.).

Indeed, since the establishment of the state, Israeli jurisprudence has developed an extensive system of balances between freedom of expression and the values and principles with which it clashes. Fundamental guidelines were established, which determine the level of protection to be conferred on freedom of expression, on the basis of the relative social importance of the values and principles with which it may clash. One formulation of the freedom of expression in Israel was conceived by Justice Agranat in Kol Ha’Am [4]. This formula examines the proper balance between freedom of expression and public peace. It provides that, in such a clash, freedom of expression may be impaired if the following two conditions are satisfied. First, the harm that the expression causes to the public peace must be serious, grave and severe. The harm must exceed the “level of tolerance” acceptable in a democratic society and shake that society to its very foundations. Second, the probability of such an injury to public peace occurring must be nearly certain. It is insufficient that the harm be only possible or probable. Of course, this is not the only balancing formula. Indeed, “the proper criterion is not fixed and uniform with respect to all types of cases... it is necessary to adopt a suitable test, while considering the substance and importance of competing principles, in our perception with respect to their relative priority and the measure of protection which we would like to grant each principle or interest.” HCJ 448/85 Daher v. The Minister of the Interior [20], at 708 (Porat, D.P.).

Restrictions on Pornographic Expression

10.  Freedom of expression, of course, extends to cinematic expression, be it commercial or noncommercial. Cinematic expression is an important tool for ideological discourse. Like a book and a picture, a film conveys an ideological message. It is a source of information and entertainment. It constitutes part of freedom of expression. Freedom of expression also extends to cinematic expression the content of which is pornographic. Indeed, freedom of expression “covers” expression featuring obscene or pornographic material. Universal City, supra [10], at 34, and does not distinguish between the two. See F. Schauer, Free Speech: A Philosophical Enquiry 179 (1982). Pornographic expression is also an activity that seeks to convey a meaning or message, and is, therefore classified as “expression." Indeed, the depiction of the sex act—be its content and offensiveness what it may—is expression encompassed by freedom of speech. See R.. v. Butler (1992) [62]; P.W. Hogg Constitutional Law of Canada 977 (3rd. ed., 1992); M. Reiman, Prurient Interest and Human Dignity: Pornography Regulation in West Germany and the United States, 21 U. Mich. J.L. Ref. 201 (1988).

11.  Although pornographic expression is “covered” by freedom of expression, like any other expression, it too may be restricted. Indeed, no constitutional arrangement granting constitutional protection to freedom of expression protects all obscene material. Freedom of expression is not the freedom to express obscenities. In constitutional democracies, sensitive to freedom of expression, there is no general constitutional right to create or consume obscene material. Every society is entitled to protect itself against obscene expressions. Therefore, every society that is sensitive to human rights, in general, and to the right to freedom of expression in particular, is entitled to impose restrictions on freedom of expression with respect to obscenities. These restrictions should be for a worthy purpose. Their infringement on expression should not exceed the necessary.

We have stated that it is possible to restrict pornographic expression if there is near certainty that it would cause serious, grave, and severe injury to public peace. See HCJ 243/81 Yeki Yosha  v. The Film and Play Review Board [21]; HCJ 14/86 supra [14]; Universal City supra [10]. In this manner, offensiveness may justify restricting freedom of expression if it exceeds the standard of social tolerance. In other words, if it is capable of shaking the foundations of mutual tolerance. See Universal City [10], at 38; The Queen v. Towne Cinema Theaters [1985] 18 D.L.R. 4^th 1 [63]. Such harm can justify restricting pornographic expression to the extent that it is capable of degrading a woman, thereby causing both direct and indirect harm to the equal status of women in our society and encouraging violence, particularly towards women. Addressing the issue of criminal liability for pornographic advertisements, Justice Sopinka, of the Supreme Court of Canada, wrote:

This type of material would, apparently, fail the community standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women. While the accuracy of this perception is not susceptible to exact proof, there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women, and therefore to society as a whole.

Bulter [62], at 467.

Indeed, in the hearing before us, the parties did not dispute that a pornographic film can entail a near certainty of serious, grave and severe harm to public peace. See HCJ 89/80 Ohayon v. The Film and Play Review Board [22], at 531. Therefore, it was not necessary for us to consider the empirical basis for these shared postulates. The dispute before us relates to the pornographic nature of the film "L'Empire Des Sens." The petitioners claim that the film has artistic value, and is therefore not pornographic. The respondents, for their part, argue that the film is of no artistic value and, in any event, the sections that the Board wishes to see deleted are of a pornographic character. We shall now turn our attention to an examination of this issue.

On Pornography and Art

12. The dispute between the parties gives rise to the following question: what is pornography? A well-known answer is that provided by Justice Stewart, who, unable to define obscenity, said: “I know it when I see it.” Jacobellis v. State of Ohio, 378 U.S. 184 (1964) [48]. This answer is unsatisfactory. Indeed, the modern approach defines pornography as a publication in which—according to accepted contemporary community standards—the material’s dominant theme, in its entirety, arouses impure carnal desire. This was the formula accepted by the United States Supreme Court in Roth v. United States, 354 U.S. 476, 489 (1951) [49] and forms the basis of the test for pornography adopted by the Court:

[w]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest

We can employ this as an “operational” definition, while recognizing that it is not unique, and that other formulae exist for this purpose. See, for example, the definition of pornography in Miller v. California, 413 U.S. 15 (1973) [50]. Perhaps an all-encompassing definition cannot be formulated—see the words of Justice Brennan in Paris Adult Theater I v. Slaton, 413 U.S. 49, 85 (1973) [51]. We, however, have no need for deciding this matter, as all the relevant definitions have one thing in common: that a publication boasting artistic, literary, political or scientific value is not caught by the ban on pornographic publications. Thus, in Roth [49], at 487, Justice Brennan said:

Sex and obscenity are not synonymous. Obscene material is material that deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.

Two very different perspectives may support this approach. According to the first of these, art and pornography are mutually exclusive. If the publication is of an artistic, literary, scientific or political nature, its character is, by definition, non-pornographic. Such is the law in the United States and Canada. According to the other viewpoint, the publication’s artistic nature does not serve to negate its pornographic character. Rather, it alters the fundamental balance between freedom of expression and the restrictions that can be placed upon it, and is likely to offer a pornographic publication “protection” against criminal conviction. Such is the law in England. See C.R. Sunstein, The Partial Constitution 261 (1993). According to both the first and second approach, a publication of an artistic nature—literary, political or scientific—cannot be subject to the same restrictions as a pornographic publication. Opinions differ as to the measure of the literary, political or scientific value required. There are those who maintain—and so it was held in Roth [49]—that any such value is sufficient, and the work need not be of serious value. Others, for their part, maintain—and so it was held in Miller [50]—that serious literary, political or scientific value is required. See F.F. Schauer, The Law of Obscenity 136 (1976). Thus, constitutional weight is allotted not only to freedom of expression, in general, but also to freedom of artistic expression. This freedom can be understood as being part of freedom of expression, “out of which several things grow, including the freedom of artistic expression in the literary field and in the visual area in all its forms.”  Universal City supra [10], at 27. “Freedom of expression is the author’s freedom to break through his innermost feelings, to spread his wings and have his idea take flight.” Laor, supra [14], at 433. It may be understood as a constitutional right that “stands on its own two feet," so to speak. It is based on the notion that man is an autonomous creature, entitled to self-actualization, as both a creator and as one who benefits from the creation. Indeed, freedom of artistic expression is the artist’s freedom to create. It is the freedom to choose a subject and the manner in which it is presented. It is also the freedom of others to listen and absorb. Of course, freedom of artistic expression is also not absolute. Like other “freedoms," its nature is relative. Thus, it may be impaired for a worthy purpose, provided that the infringement does not exceed the required measure.

The "Work as a Whole" Test

13. As such, if the publication has (serious) artistic value, it is not caught by the prohibition on publishing pornographic material. The question, therefore, is how to determine whether a particular piece is of an obscene or an artistic character. For these purposes, the practice in nineteenth-century England was to examine individual sections of the piece alleged to be pornographic. According to this approach, it was deemed sufficient to base the fate of an entire piece on the effect of its individual sections. See Regina v. Hicklin (1868) 3 Q.B. 360 [58]. As per this test, important works of literature or art were deemed pornographic if they featured sections of a prohibited pornographic character. This test is no longer valid, neither in England nor outside it. See Irish Family Planning Association v. Ryan [1979] I.R.J. [47]. In Roth [49], Justice Brennan wrote:

The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible person, might well encompass material legitimately treating with sex and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.

The modern test for assessing a work’s pornographic nature is holistic and involves the integration of sections alleged to be pornographic. This is commonly referred to as the “taken as a whole” test. This test was accepted in Roth [49], and subsequently in Miller [50]. This case marked the inception of “the work as a whole test” to determine whether a piece constitutes art. According to this test, material will be deemed pornographic only if the following three cumulative conditions are satisfied:

(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Id., at 24.

For our purposes, the third component of the Miller [50] test is of the essence. This prong provides that a work’s artistic value is evaluated on the basis of the work as a whole. Thus, the artistic value of individual sections per se is not examined. This approach is also accepted in Canada. In Butler [62], Justice Sopinka wrote:

The "internal necessities" test, or what has been referred to as the "artistic defence," has been interpreted to assess whether the exploitation of sex has a justifiable role in advancing the plot or the theme, and in considering the work as a whole, does not merely represent "dirt for dirt’s sake" but has a legitimate role when measured by the internal necessities of the work itself.

Id., at 469. German jurisprudence adopted a similar approach in BVerfGE 67 (1984), 213 (known as “The Street Theater case”). There, the Constitutional Court wrote:

Artistic expressions can be interpreted and are in need of interpretation. An indispensable element of this interpretation is that the work of art be viewed in its entirety. One may not take individual parts of the work out of context and examine them separately to see if they merit criminal sanctions.

The Constitutional Jurisprudence of the Federal Republic of Germany 435 (D.P. Kommers trans., 1989)

This approach is also currently accepted in England: although the work as a whole may be of artistic value, this in itself is not sufficient to preclude application of the obscenity law. See section 1(1) of the Obscene Publications Act-1959. It is also necessary that the sections alleged to be pornographic form part of the plot and of the message. It therefore follows that when a section of a work is ostensibly alien to the work as a whole, it may be examined in isolation. Based on “the work as a whole test," it was decided that James Joyce’s Ulysses was not pornographic. The Court stressed that the book contains several passages, which, if examined in isolation, would be considered pornographic. When examined as a whole, however, the book has artistic value. See United States v. One Book Entitled Ulysses, 72 F.2d 705, 707 (2d Cir. 1934) [52]. Similarly, it was held that Lawrence’s Lady Chatterly’s Lover was not pornographic, notwithstanding certain passages which, if isolated and examined on their own merit, can be described as being of a pornographic character. See Grove Press, Inc. v. Christenberry, 276 F.2d 433 (2d Cir. 1959) [53]. Similarly, it was held that John Cleland’s Memoirs of a Woman of Pleasure, also known as Fanny Hill, has artistic value, despite the pornographic passages it contains. See Memoirs v. Massachusetts, 383 U.S. 413 (1966) [54].

14.  The work as a whole test is also the test applied in Israel. It is compatible with the path taken by our case law: to examine the expression according to its context and circumstances. To this effect, Justice Cheshin has written:

The same word, or several words, can be unworthy of protection in one context—if, for instance, they stand on their own—but may warrant heightened protection in a different context, such as in a literary test.

HCJ 606/93 supra, at 29 [11].

Consequently, it was held that “we are bound by an enlightened viewpoint—according to what is commonly accepted nowadays—to accept even a substantial measure of provocative depictions of sex if they appear as an integral part of a work of literary or scientific value, which compensate for the works pornographic aspect.” Crim. App. 495/69 Omer v. The State of Israel 412 [23] (Landau, J.); see also DC (Haifa) 404/82 Yishayahu v. The State of Israel 526 [46]. Thus, sections, which in and of themselves and taken in isolation, are liable to be perceived as pornographic, lose this character if they are part and parcel of an artistic work or a work that boasts other societal value.

The Board’s Decision and the Scope of Judicial Review

15.  It is incumbent upon the Board to examine whether the film is of (serious) artistic nature. If the film does indeed have artistic value, its screening must not be prevented by reason of its pornographic character. Hence, the Board must probe the work’s artistic value. It must also ascertain whether certain sections, which, in isolation, could be deemed to be pornographic, form part of the work’s evolution, in terms of its plot and its message or, on the other hand, are alien to the film. To this end, the Board is entitled to seek out expert opinions. On the basis of the evidence before it, the Board will have to decide, employing “the work as a whole test," whether the film, as a whole, has artistic value, and whether the sections asserted to be of a pornographic character are part of the plot’s evolution and of the message. For this purpose, it is not necessary that the Board become an art critic. It should not grade work, or determine whether its artistic value is great or minimal. Nor should it impose its own members’ artistic preferences the members of our society. I highlighted this point in one of the cases cited:

The question is not whether the script is of remarkable artistic value or not. The Board is not an art critic, nor is it the body responsible for evaluating scripts’ artistic value

Laor [14], at 431.

Rather, the Board must determine whether the film, as a whole, has any (serious) artistic value. For this purpose, the Board must distance itself from all “cultural paternalism” (as per President Shamgar in Universal City [10]). It must understand that, at times, artistic expression seeks to break through the existing boundaries and establish new artistic horizons. It must take into consideration that artistic expression grants its creative author freedom, which must not be restricted in the name of contemporary conventions. Compare HCJ 175/71 The Abu-Gosh/Kiryat Ye’arim Music Festival v. The Minister of Education and Culture 828 [24]. In the area of artistic creativity, we must let a thousand flowers bloom in the artistic garden. Indeed, we must recognize the existence of artistic pluralism, and acknowledge the lack of clear-cut, objective criteria for this purpose. Thus, what is today perceived as a work devoid of artistic value may, in coming years, be considered a masterpiece. In light of the above, the Board must take a neutral stance with respect to competing artistic perceptions. Therefore, in order to establish a work’s artistic character, thereby negating its pornographic aspect, it is sufficient that the Board’s assessment affirm the work's (serious) artistic nature, even if this assessment is controversial, and even if it does not reflect the assessment voiced by the majority of the public or by the majority of art experts.

If material has serious literary value for a significant portion of the population, then the fact that this portion is neither average nor it be majority is irrelevant... If a work is a serious literary endeavor, with the purpose of stimulating the mind, and if it has this effect on a significant number of people, then literary value exists and there can be no finding of obscenity.

The Law of Obscenity, at 144.

We must bear in mind the following: in matters artistic and aesthetic, differences of opinion abound. We must not demand universality. It is sufficient that there is an opinion, even if it is controversial, with respect to the (serious) artistic value of a work. For our purposes, the words of President Agranat are rather fitting:

A work of art is not required to be universally esthetically pleasing, and its artistic value does not depend on the majority’s ability to appreciate it; the true test for these purposes is anchored in the degree of satisfaction and type of pleasure that the work confers on those able to best appreciate it

CA 448/60 Lev v. The Central "Mashbir" 2700 [25]. Indeed, if it is possible for us to err, we should err on the side of promoting freedom of expression and freedom of artistic creation. As Justice Landau, Omer at 411 [23], rightly stated:

The line between that which is permitted and what is prohibited should be set by the Court in every case according to its discretion, in accordance with enlightened views, prevalent in our modern society, bearing in mind that each restriction of freedom of expression smacks of censorship; in borderline cases, therefore, the tendency must be to permit rather than prohibit.

Similarly, the ruling handed down by Justice Sopinka, Butler [62] at 471, dealing with criminal liability for obscene publications, provided:

Artistic expression rests at the heart of freedom of expression values and any doubt in this regard must be resolved in favour of freedom of expression.

This approach gives proper expression to the idea of “the mutual tolerance required in a pluralistic society." HCJ 549/75 Noah Films Ltd. v. The Film Review Board. [26] (Vitkon, J.). Indeed, the Board was not intended to fashion “criteria for morality,” and its job is not to formulate “educational criteria." FH 3/87 The Film and Play Review Board v. Laor supra [27], at 163 (Shamgar, J.). True, the Board is composed of people from the fields of education, literature, journalism and law. They, however, must not express their subjective views with respect to the artistic value of a work. Instead, they must consider and decide, according to the material before them, whether it is possible to conclude that the film could be deemed to be of (serious) artistic character— even if this would not correspond to their own assessment— and that parts of it, even if they are pornographic taken independently, constitute an integral part of the piece.

16.  The Board’s decision is subject to judicial review by the High Court of Justice. Inter alia, the Court examines whether the purpose underlying the restriction on expression is proper, and whether the means adopted by the Board to restrict this expression do not exceed the required measure. When the argument is that the film has artistic value and is therefore not pornographic, the Court must examine whether the Board’s decision in this regard is reasonable. It is not enough for the Board to opine that certain parts of the film—if isolated from the whole of the work and observed independently—are pornographic. Instead, it is incumbent on the Board to examine the artistic nature of the work as a whole, in order to determine whether it is to be considered art or obscenity. Thus, it is also insufficient for the Board members to opine that the film, as a whole, is of no artistic value. The Court must ask itself if, employing the appropriate standard, a reasonable board would be justified in deciding that the film, in its entirety, is of no artistic value. Indeed, the test for the artistic value of a work must be based on the data before the Board and on the objective criteria according to which a work’s artistic nature is determined. Laor [14], at 438. The question is not, whether, according to a Board member’s subjective artistic perception, a work has no artistic value. Rather, the question is whether, according to the evidence presented to the Board members—and against the backdrop of the objective criteria used for testing the work’s artistic nature—the work has artistic value. If the Board has not taken this objective approach, this Court will not hesitate to strike down its decision. Indeed, the work’s pornographic character and the lack of all artistic, scientific, literary or political value constitute “constitutional data." This data has a mixed character of fact and law. The ultimate responsibility for determining it rests with the Court, as I noted in one of the cases:

[T]he question before us is a basic constitutional question. It touches on the very substance of freedom of expression and the matter of delineating its boundaries. The responsibility for these matters rests with the Court.

Universal City [10], at 40. In a similar vein, Justice Harlan noted in Roth supra [49], at 497-98:

[I]f ‘obscenity’ is to be suppressed, the question of whether a particular work is of that character does not really involve a question of fact but rather a constitutional judgment of the most sensitive and delicate sort.

Indeed, the Court will not ask itself if, in its own opinion, the work possesses artistic value. The Court—like the Board itself—is not an art critic. Instead, the Court will ask itself if whether, on the basis of the facts presented to it, a serious assessment affirming the work’s artistic value exists, even if this assessment is controversial. More specifically, the Supreme Court does not conduct its own independent examination. This examination is conducted by the Board. The Supreme Court asks itself if, according to the material presented to the Board, this body, acting as a reasonable board, was entitled to conclude that the material is pornographic and of no redeeming artistic value. Schauer referred to this in his book, The Law of Obscenity, supra at 152, stating:

What the scope of review involves is a determination of whether, as a matter of constitutional law, the materials are of such character as to be clearly outside the scope of First Amendment protection.

This test does not obviate the Board’s function. It is the Board that establishes the facts and performs the assessment. This assessment, however, has a constitutional dimension. It infringes on freedom of expression. The Court therefore has the constitutional obligation to examine whether the Board’s determination is anchored in the facts that were presented to it and whether it has reasonably exercised its discretion.

After all, the following must be borne in mind: the Board’s refusal to grant a permit to a film prevents that film from being screened, thereby constituting a prior restraint. The prior restraint is imposed by a body that is not a court and does not possess the tools that a judge, using judicial criteria, has for testing whether a publication is obscene. It imposes the burden on those wishing to obtain a permit. In a constitutional regime that protects freedom of expression, it is necessary to exercise stringency with a procedure involving prior restraint, which “freezes” freedom of expression and is carried out by a body other than a court. See HCJ 399/85 supra [8], at 297; see also Freedman v. Maryland, 380 U.S. 51 (1965) [55]. Indeed, a number of constitutional democracies do not allow the imposition of any prior restraints, such as the censorship of films, plays or books, and satisfy themselves with subsequent criminal proceeding, in which the burden of proof rests with the prosecution and where the defendant’s rights are guaranteed. In Israel, the censorship of films is recognized. It forms part of the law, the validity of which is preserved as existing legislation, prior to the enactment of the Basic Laws, by virtue of Section 10 of the Basic Law: Human Dignity and Liberty. In exercising this censorship, it is necessary to ensure the effectiveness of judicial supervision. As Justice Dorner correctly pointed out:

In cases in which the law authorizes an administrative authority to restrict freedom of expression, the law—as it is interpreted by the Court—determines the tests according to which the authority will decide whether or not to deny freedom of expression. Thus, the Court examines whether the authority’s decision meets the conditions set out by the tests to which it is subject.

Advancement [11], at 10.

From the General to the Particular: Does the Film “L'Empire Des Sens” Have Artistic Value?

17. Reviews of the film "L'Empire Des Sens" are divided. On one hand, there are several opinions holding that the film is devoid of any artistic value and is nothing but pornography for pornography’s sake. These statements stress that the film is merely an endless series of sex acts in different variations. According to this view, the film offers nothing but “hard-core pornography." Most of the Board members took this approach. They stated that the film has no artistic value, and that all it contains is a series of sex acts. It contains sexual perversions and close-ups of genitalia. It features severe violence, and is merely an obscenity. The members stressed that if the Board has any purpose at all, it is to censor films of this sort.

18. On the other hand, there are many opinions, which hold that the film has great artistic value. These opinions, which were presented to the Board and to the Court, emphasize that the film does not encourage sexual arousal. On the contrary, it conveys an “anti-pornography” message; it stresses the folly of lust, and how it flickers, ending in death. It is emphasized that "L'Empire Des Sens" is a profoundly artistic film. True, the film deals with human sexuality, but it  is not obscene nor pornographic. It expands and increases our aesthetic and spiritual wealth. Those who are of this opinion state that the film is exciting in its intensity and cinematic language. In addition, the Board and the Court were informed of the important awards won by the film at international film festivals, such as Cannes, Lugarno, London, New York and Chicago, the rules of which forbid the screening of pornographic films. It also won the award for the Best Film of 1976 in England. The Board and the Court were shown reviews published in the most important American and British weeklies and newspapers, including Newsweek, Guardian, Sunday Times, Los Angeles Times, Times. All of these articles emphasized that “L'Empire Des Sens” is an extraordinary, beautiful, real and powerful film. They also stated that the film is not pornographic, that it is the pioneer of art films dealing with sexual obsession, and that it is a high-level artistic work. It was screened in Israel on February 28, 1995 on cable TV’s European culture and arts channel, “Arte," which is broadcast all over Europe. It has been approved for distribution in various European countries. Furthermore, previous judicial decisions have cited the film’s respectable artistic value. Thus, German courts, both at the first instance and at the Supreme Court, dealing with the criminal aspect of exhibiting the film, held the film not to be pornographic, as it was not intended to sexually arouse the viewer, but rather to warn him of the danger inherent to an obsession focusing on sexual relations between two people. See, Archiv fuer Urheber-, Film-, Funk-, und Theaterrechte, 17 Mar. 1977 at 204. Some of the Board members also expressed the view that the film is a cinema classic.

19. It seems to me that, in light of the above, the Board should have determined that the film has serious artistic value, which precludes its classification as a pornographic film. The Board was presented with a factual basis according to which there was an assessment affirming the film’s serious artistic nature. Based on these facts, the Board should have concluded that the film is art. The fact that there are differences of opinion in this regard should not negate this assessment. Several Board members stressed that they are not film critics, and rightly so. The obvious conclusion to be drawn from this is that where there is a credible and serious basis for upholding the film’s artistic nature, this is sufficient to support an assessment of artistic value, even if there are dissenting opinions in this regard, and even if the dissenting opinion is voiced by the Board members themselves. They must not express their subjective view with respect to a work’s artistic nature, but rather an objective view with regard to the question of whether there exists a serious opinion—even if it is not their own opinion—concerning the artistic nature of the work.

20.  As mentioned above, the Board decided to condition a permit for the film on the deletion of several sections. In the vote taken, the Board members’ opinions were divided. Most maintained that the film as a whole is of a pornographic nature and should not be permitted. The minority maintained that the film is of an artistic nature and consequently should be permitted, subject to deletion of the parts in which children appear). Ultimately—and after the Attorney General’s representative pointed out to the Board that he could not defend a full ban on the screening of the film—the members reached a compromise whereby the film would be permitted if a number of sections were deleted from it. Therefore, very little attention was paid to the question of the fate of sections which, in isolation, could be characterized as pornographic, but which fit into the artistic work, and appear to be required for the plot’s development and for the integrity of the message conveyed therein. Thus, it was found that the Board did not discuss the pivotal question of this petition. During oral arguments, we brought up this point. In his answer, Mr. Nitzan pointed out that even if the film has artistic value, such value is not sufficient to prevent the deletion of certain sections, provided that these sections have no “redeeming societal, artistic value." This approach, as we have seen, is fundamentally erroneous. As noted, the test that the Board must employ is the “work taken as a whole” test. One must not scrutinize a number of isolated sections with a “magnifying glass," and ask whether these sections, per se, are pornographic. Instead, one must look at the entire work “from a distance” and ask whether this work, which integrates these and other sections, is a film with artistic value. The Board did not perform this examination.

21.  I have concluded that there is no choice but to strike down the Board’s decision. Indeed, if the film before us had constituted obscene material, there would have been no room to interfere with the Board’s decision. The trouble is, that, according to the facts presented to the Board, the film as a whole is not pornographic, despite sections of it, which, if isolated—and not taken as part of the work as a whole—could be perceived as being so. According to the proper criteria, the Board should have determined that, in view of the differences of opinion regarding its artistic value, the work should be classified as having artistic value. It should have determined that, on the basis of the work taken as a whole test, it is unwarranted to delete sections which, if isolated, could be deleted as being pornographic. The Board’s decision deviates from the bounds of reasonableness and must therefore be struck down. In view of this conclusion, we need not consider the other arguments advanced, as the Board based its decision on the film’s pornographic character. In view of the collapse of the reasoning underlying its decision, there is no choice but to strike it down. There is therefore no room for examining the question of whether, notwithstanding the film’s artistic character, it would have been appropriate to deny a permit for its screening, in view of the harm it causes to public feelings. As stated above, the main rationale for the Board’s decision is the film’s pornographic character. Since this rationale has collapsed, the basis for the Board’s decision has also disintegrated.

As a result, the order nisi is hereby made absolute. This is to say that the Board must allow the film to be screened, without deleting any sections from it (save for the two sections that the petitioners agreed to cut). The film shall be restricted to adults only.

Justice E. Mazza

I agree.

Justice M. Cheshin

I have read the opinion of my colleague, President Barak and, truly, it is a song of praise to the freedom of expression. I placed my hand in his and allowed him to draw me in his wake, as he made his way among the thickets. Happy and supportive, I followed him some distance. Nearing the path’s end, however, I felt the road growing difficult for me. At the risk of stumbling, I decided to find my own path. Thus, I started, and in the end found myself alone, my colleagues not at my side.

Indeed, I agree with the main points made by my colleague, almost all of them. That “almost” signifies the small difference between us, and—perhaps—this difference might not be so small.

The Framework of the Discussion and the Clashing Interests

2.    Prior to commencing a substantive examination of the issues, it is appropriate to dwell upon the discussion’s framework and the expanse in which we are to move. In the subject upon which we deliberate, two main interests compete with each other, each pulling in its own direction. The first interest is that of the individual’s freedom of expression. The other interest, likely to change from matter to matter, is variously formulated as “the public order," “the public good," “public feelings," and other such names and terms, which generally refer to the good of the community and the public interest. Beginning with the individual’s freedom of expression, let us examine both of these two types of interests.

3.    My colleague dwells at length on the various areas of freedom of expression, and I am prepared to agree with him—without, however, ruling on the matter—that this principle extends to all means of communication between man and man, whether in categories that man has preeminence over beast, or whether in categories that "man hath no preeminence above a beast." Ecclesiastes 3:19 [65]. To this effect, see my comments regarding the Gal Law, in CA 6821/93, PLA 1908/94, PLA 3363/94 United Mizrahi Bank v. Migdal Cooperative Village [28], 568-71. At the same time, let us remember that the ideal of the freedom of speech does not lay with equal force upon all modes of expression and types of statements, as if it was a rigid, stiff monument.

I was required to address this issue in the Advancement [11] case. In that matter, which dealt with commercial advertising, I opined that freedom of expression in matters of commercial advertising is far weaker than freedom of expression in matters of supreme importance, such as the issue of criticism of the regime and reporting about events that have occurred:

In our attempts to examine the clashing interests lying at the heart of the conflict, we will take heed to distinguish between the great and the small, between primary interests and those below them; the protection accorded to freedom of speech and expression shall, to my mind, be in conformity with the interest being examined. Thus, for instance, the right to voice criticism directed at the regime or establishment—including the citizen’s right to information—shall be guarded strictly, with heightened care and dedication. Commercial publications, for their part, do not require us to adopt such an extreme position, and we are satisfied with humbler tests. The level of protection shall correspond to the interest at hand. We will not adopt an extreme position with respect to commercial advertisements, even though its older brother and sisters are entitled to enhanced protection. When we deal with criticism directed at the government, we find ourselves in the fiery heart and soul of the ideal of freedom of speech, which we spare no effort to protect. Commercial advertisement is situated at the peripheries, a humbler place.

Id. at 28. See also Id., at 11-13 (Dorner, J.)  See also HCJ 6218/93 Dr. Cohen Adv. v. The Israeli Bar Association [29], 550-51 (Shamgar, P.)

In other words, even though commercial advertising resides in the house of freedom of expression, its status is not like that of freedom of expression relating, for example, to criticism of the regime. In the house of freedom of expression there are various modes of expression and speech, which have a place in the sanctuary, and there are other modes of expression and speech that do not. When freedom of expression clashes with opposing interests, the various modes of expression and speech wage battle, each with its own intensity. Freedom of expression is not an idol, that we should prostrate ourselves before it wherever we encounter it. Upon concluding that the matter at hand involves one of the derivatives of freedom of expression—an expression that finds shelter under the wings of the broader principle—we test its mettle before sending it out to battle with conflicting interests. Our way is the way of atomization, or, if one prefers: the way of moleculization—we divide the field of freedom of expression into individual categories, according to the type of interest which we protect. There is an article in a newspaper and then there are belles-lettres, there is a description of events and then there is a speech, there is a commercial advertisement and then there is criticism of the regime, there is societal criticism and then there are parades. Each one of these, and others besides them, reflect a certain interest, and the strength of the right will be equal to the strength of the interest. The same applies to modes of expression and speech: there are newspapers and then there is film, there is theatre and then there is television, there is radio and then there is the stage.

At times, sectors partially overlap, and sometimes, different sectors will constitute the two faces of Janus. Thus it is, for example, with radio or television commercial advertisements, or a social critique in a theatrical show or film. It is not relevant to analyze each of these sectors at this juncture. Our purpose now is to say only that various forms of freedom of expression are not fashioned from the same clay, and that in the area of freedom of expression, different types of flowers bloom, and though all are members of a single family—the family of freedom of expression—not all members are identical. Thus, when examining a particular matter, it will be incumbent upon us to focus on the relevant sector and examine it closely, in order to clarify its intensity and magnitude.

4.    It is important that we say these things—that we say them and say them precisely—if only because we often find that people try to explain the nature of one type of freedom of expression using interests that support freedom of expression of another type, and thus we find ourselves mixing apples and oranges. Hence, for example, when considering freedom of the press or a documentary report on certain events, it is simple for the Court to establish the boundaries and strength of freedom of expression in a way which is commensurate with the issue being discussed before it—an issue forming one of the pillars of the democratic regime. In Film Studios in Israel [6], Justice Landau noted:

A regime which takes upon itself the authority to determine what is good for the citizen to know, will eventually also determine what is good for the citizen to think; and there is no greater contradiction for a genuine democracy, which is not "guided" from above.

Id., at 2416. In Advancement [11], I quoted the remarks made by Justice Landau, and my question was whether:

[t]hese things will apply—with all the intensity and feeling with which they were uttered—even to a commercial advertisement, such as advertisements for laundry detergent or hot-air balloons? Will the lofty and noble statements, which the Court was required to address, and rightly so, in Kol Ha’Am, Ha’aretz, Avneri, Shiran, and in HCJ 680/88 Schnitzer v. The Chief Military Censor, in Kahana—will these same lofty, noble statements bet set as a canopy over the head of commercial advertisements for the promotion of such and such a product or such and such a service? Does application of the principle of freedom of expression, in all its glory, to a commercial advertising, not constitute, if only to a small degree, a loss of perspective?

Words emanating from the pen of Justice Landau—lofty words in Orwellian language—will not hold in relation to freedom of speech in the matter at bar, and certainly will not hold in relation to other issues, such as commercial advertisements. This was the case when Justice Agranat said that freedom of expression is “democracy’s most cherished principle,” Ben-Moshe [1], at 435, and when Justice Shamgar granted freedom of expression a “supra-legal status." Israel Electric Company supra [3], at 295. I think I would not be wrong if I said that neither of the two directed his remarks and thoughts at a film such as "L'Empire Des Sens." Indeed, Ben Moshe [1] involved a defendant on trial for attempting to murder Member of Knesset Wilner because of the MK’s opinions and statements. In discussing this act, Justice Agranat said that “any act committed outside the law’s framework and intended to harm others’ freedom of expression—and, a fortiori, a violent act—is tantamount to harm to democracy’s most cherished principle. Id. at 435. Israel Electric Company [3], for its part, turned on the issue of defamation. There, the Court primarily occupied itself with “the character of the democratic regime." What business have we to speak in flowery language and make use of expressions and descriptions—themselves full of substance—that are fundamentally unrelated to the matter at hand?

In the Advancement case [11], at.17, I cited the well-known saying attributed to Voltaire: “I may disagree with what you have to say, but I shall defend, to the death, your right to say it." To this, I added that were we to ask Voltaire if he would be willing to defend the petitioner’s right to voice vulgarities to the death, "he would ask us to repeat the question: so far removed is the matter from his intent." Id., at 18. That which we said regarding the above commercial slogan is equally applicable to the case at bar. To apply lofty principles, dealing with freedom of expression, to a movie that some deem to be pornography—and that, in any event, is fraught, and indeed overflowing, with sexual acts—demeans the importance allotted freedom of expression, thereby bringing these great principles into derision. Indeed, my statements in Advancement [11], at 19 are applicable to the case at bar, subject to the necessary modifications:

Regarding the weight attaching to the saying summum jus summa injuria, I will say the following: enlisting freedom of speech in order to protect a commercial advertisement or a vulgarity is an unworthy use of conceptions of freedom and liberty, and is tantamount to equating the nation’s most revered with the lowest of the land.

In Chief Justice Berger’s words in Miller [50], at 30:

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a ‘misuse of the great guarantees of free speech and free press'"

See also S. Kentridge, Freedom of Speech: Is It The Primary Right?, 45 Int. & Comp. L.Q. 253 (1996). For a different view, see Y. Zilberschatz, On Commercial Freedom of Expression, 3 Mishpat U’Mimshal 509 (1995-96).

We shall, therefore, separate between distant relatives, so that we shall not err in our way. Thus, in reading what judges (and others) have said regarding freedom of speech, we shall consider the context in which the remarks were made, as well as the background to their utterance. In this manner, and in this manner alone, shall we know how to gauge their proper measure and tell their correct weight.

5.    In emerging into reality, freedom of expression meets opposing interests, which seek to make it vanish or, at least, to diminish its value and dimensions. These interests are collected and come from various areas and find shelter under the canopies of “public order," “public peace," “public feelings," and other similar expressions. These concepts are all-inclusive, and their scope of application will vary from time to time. See Laor [14], at 430. However, the expressions “public order” or “public feelings”—per se—are not sufficient to diminish the power of freedom of expression. We shall kindly request of the person who pleads on their behalf and relies on them to expound on his remarks, just as the person pleading on behalf of freedom of expression, must expound on what freedom of expression says on his behalf. For example, "harm to the existence of the state, to its democratic regime, to public peace, to morality, to religious feelings, to a person’s good name, to the guarantee of fair judicial proceedings,” Id., [14] is insufficient. It is incumbent upon us to delve further and further into the said interest, to turn it upside down and on its feet, on its head and its sides, examine it thoroughly inside and out and, at the end of the examination, send it forth to contend with the specific freedom of speech interest that awaits it.

6. Against the backdrop of the two opposing interests, let us make a few comments about the film before us and about the question being disputed by the litigants.

The Film "L'Empire Des Sens" and the Matter in Dispute

7. Sharp differences of opinion have surfaced with regard to the artistic value of the film before us. There are those who praise it to the heavens, while others denounce it vigorously. However, there are no differences of opinion—and there cannot be any differences of opinion—regarding the film’s contents and the events that it depicts. The story is about the tangled relationship between the film’s main character, a Japanese man, and a girl who works in his household. Almost the entire film deals with the sexual encounters between the man and the girl, between the man and his wife, and even between the man and other women. The frequency and intensity of sexual encounters between the man and the girl constantly increase—in a myriad of variations—and they are at the center of their being and at the core of the film itself. The man and the girl sink into a sexual obsession, and one sex act follows another, almost from the beginning of the film until the end. One can say—without exaggeration—that no sooner does one sexual escapade culminates that the next one begins. Indeed, other than short statements exchanged between the actors— a little here and a little there—we find ourselves knee-deep in sexual encounters between the man and the girl, and in a minority of cases, between the man and other women. Many scenes combine sex and violence, including intercourse clearly exhibited, physical abuse of the genitalia of an old man and a boy, the rape of a woman, the rape of a girl with a wooden instrument, the girl’s strangulation of the man, the strangulation of the man until he is dead, and the subsequent severing of his sexual organ. The actors’ genitalia are clearly exposed to the viewer, be it during the sex act or otherwise.

The Board held many stormy discussions regarding the film. A summary of these sessions may be found in President Barak’s opinion. At the end of these discussions, the Board took the following decision:

The Film Review Board’s September 11, 1994. Decision with Regard to the Screening of the Film L'Empire Des Sens.

After studying its previous decisions on the matter, after hearing a review of the legal situation, and, in particular, a review of the rulings set forth in the judgment with respect to the screening of The Last Temptation of Christ and the staging of the play Ephraim Returns to the Army, and after deliberations, in which members of the Board participated, the Board decided as follows:

The screening of the film L'Empire Des Sens shall be approved for screening to viewers who are at least 18 years of age, contingent upon the deletion of the following sections:

(a)      Sexual intercourse in which the viewer clearly sees the male sexual organ penetrating the female.

(b)      Physical abuse of the sexual organ of an old man by children (the section appears at the beginning of the film).

(c)      Clearly shown masturbation, performed by an old man in front of a naked woman.

(d)      Oral sex performed on the male lead by the female lead, until ejaculation.

(e)      Sexual abuse of a boy (a two second section at the end of the first reel in which a woman pinches a boy’s sexual organ).

(f)      A lesbian rape of a young girl by several women.

(g)      An orgy involving the main characters, during which we see close-ups of exposed genitalia.

(h)      Sexual intercourse in a sitting position, during which the male lead is strangled by the female lead.

(i)       A scene in which the female lead cuts off the sexual organ of the dead male lead and holds the severed piece.

According to the Board’s decision, in each of the above- mentioned scenes, only those isolated seconds, in which the camera focuses on the genitalia during intercourse or sexual abuse, need be deleted.

In our assessment, the deletions total only a few minutes. In the Board’s opinion, the screening of these sections entails certain or, at least, near certain probability of harm of a severe, serious, and grave nature to societal sensibilities and public morality.

This decision was approved by a majority of 8 members against 4, with the dissenters maintaining that the previous decision should be left in place, which disqualified the entire film for screening.

The decision’s significance is as follows: the Board is prepared to approve the public screening of the film, provided that the distributors delete from it isolated seconds in certain scenes “in which the camera focuses on genitalia—during sex acts or sexual abuse." The total length of the deletions is, in the Board’s opinion, “a few minutes.” The petitioner has agreed to cut segments B and E (“abuse of the sexual organ of an old man by children” and “sexual abuse of a boy.”) We are therefore talking about the other seven segments.

8. The battle before us is between freedom of expression and pornography, with the following question being asked: did the Board act within the confines of its authority, and did it carefully and properly exercise its discretion when it decided to disallow the screening of the film unless certain specific segments were cut from it? Was the Board entitled to disqualify the screening of those segments that it banned, when it maintained that they are capable of causing “severe, serious and grave harm to societal sensibilities and public morality?” These are the main questions in the matter at bar, but before we deal with them, let us speak a little about the subject of pornography, which lies at the heart of our deliberations.

A Preliminary Note on Pornography in Contemporary Times

9. During the course of a trial—and even now—I am permeated with a strange sense of hot and cold, of yes and no. As though I am supposed to rule on differences of opinion, which have surfaced between litigants who are neither of our time nor of our place. The Board gave an order prohibiting the screening of the film entitled L'Empire Des Sens unless the distributors delete certain specific sections. And why, because the Board finds that those same film segments “are capable of causing certain, or at least a probability of near certain, harm of a severe, serious and grave nature to societal sensibilities and public morality." For the sake of brevity and convenience, we shall henceforth refer to these sections as “pornographic.” In examining the Board’s decision in isolation, detached from all that surrounds it—everything is perfectly proper. A strange feeling, however, overcomes us when we turn our heads to the sides and look around us. Is the Board’s decision truly compatible with what we see and hear and know?

Indeed, the streets of our cities are filled with stores that rent out video films, and anyone with a credit card in his pocket—and who does not have a credit card?—can rent the video of his choice. And, as we all know, video films include the leading pornographic films. And if—heaven forbid—you are late and the store is closed, do not despair! Next to the same stores, there are automatic video machines—and your credit card will take you where you wish to go. Next to these stores, we all know about the adult bookshops, the sex paraphernalia shops, the “sex boutiques." At these stores, you can buy or rent pornographic video films; and the daily press continuously informs us of new film imports that feature new and diverse tricks and stunts. Pure, unadulterated pornography.

Among our people we dwell, we among our people and our people among us. Thus are we and thus are the Board members. Knowing everything that we know, an obvious question arises: Are we dealing with reality? If you will: knowing these things, do they influence our discretion or the discretion of the Board? A few years ago, a similar yet dissimilar case came before us, Crim. App. 3520/91 Turgeman v. The State of Israel [30]. In that case, a woman operated a “massage parlor” at which customers were provided with sex services for pay. The Court convicted the woman of two crimes: procurement for acts of prostitution, and maintenance of a house of prostitution. She was given a prison sentence of eighteen months, six of which she was to actually serve in prison. The woman appealed to the Supreme Court, and the appeal before us primarily revolved around the punishment’s severity. My colleagues, who presided over the case with me—Deputy President Elon and Justice D. Levin—believed that we must not interfere with the sentence imposed on the woman, whereas my own opinion was different. The judgment is long and complex, but the main point, for the purpose of our present deliberations, is that I discovered that “massage parlors” such as the one maintained by the woman in question, have mushroomed all over the country; that the press is crammed full of advertisements providing addresses and telephone numbers (and sometimes even relevant pictures); and that the police know about all these “parlors” and do not lift a finger to shut them down unless a neighbor files a complaint about the nuisance created by the parlor. In view of all these facts, I held that it was incumbent upon us to classify the appellant’s acts—at least for the purpose of sentencing—not as the crime of procurement or a similar crime, but rather as the offence of “nuisance”; and the proper punishment for it, so I concluded, ought to be the same as for the punishment meted out to the creator of a nuisance.

Will we learn from the Turgeman [30] case and draw an inference to the case at bar, regarding the prohibition or permission of the screening of pornographic films? Will we shut our eyes to what is happening around us? And perhaps the Board will become a kind of “last Victorian Island” in the sea that surrounds it? To be more precise: “The Pornography Index” (or, if you will: “The Tolerance Index”) has changed, is changing and will change from place to place and from time to time, and there is no doubt that it must influence the Board’s discretion with regard to the essence of one film or another. And yet, the question being asked revolves around the very existence and activity of the Board. Is it not a creature, a sort of anachronistic, clumsy dinosaur, belonging to a different place and era? What is the point of closing the front door to an uninvited guest if he can enter the house, undisturbed, through the back door, which isn’t even such a “back door” anymore?

All of these questions—these and their progeny—accompany us at all times, and we shall keep them in our hearts.

A Little About Pornography and Obscene Material

10.  The battle is between the pressing need to protect freedom of expression in the creation of a cinematic work and the Board’s authority to prohibit the dissemination of pornography and obscene material. Everyone agrees that the Board has acquired the authority to act to prevent the distribution of “pornography” and “obscene material." However, when the question arises as to the definition of pornography and obscene material, a problem surfaces and confusion reigns. Thus, my colleague, President Barak, adopts as a “working formula” the words of the United States Supreme Court in Roth [49]. According to Mr. Justice Brennan, the test for pornography is

Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

Id., at 489. Near the same place, Justice Brennan speaks about treatment of the topic of sex “in a manner appealing to prurient interest.” And in the words of my colleague, in para. 12 of his judgment, “modern approach defines pornography as a publication in which—according to accepted contemporary community standards—the material’s dominant theme, in its entirety, arouses impure carnal desire."

A perusal of this definition proposed to us—even if only a cursory reading—will reveal that it holds but only to a small extent. First of all, it directs us to standards accepted by the public, at a time when these standards themselves are veiled in thick fog. On the contrary, we may stand and ask: how will the Court know which standards the community accepts? Does it have, at its free disposal, "consultants for acceptable standards?" In the United States, this matter is subject to the decision of a jury, the presumption being that the jury is aware of the accepted community standards. However, where will we, who have no jury, find those accepted standards? In truth, the definition seeks to create a “reasonable man” for the purposes of pornography and obscene material. The Court sits among its people, and just as it creates “a reasonable man” for other purposes—for example, in relation to issues of damages—so will it also create the accepted "community standards." This merely means that the Court is supposed to act in its own way within its precincts. Indeed, the Court is supposed to reflect “objective” truth—it does not invent “subjective” standards—but we all know how close these matters are. This is the situation in the area of criminal law, whereas in the matter at hand, as we shall see below, the standard is to be determined by the Board.

Thus, a film dealing with “impure carnal lust," a “sexually depraved” film, revolving around “passionate urges," “lustfulness," “licentiousness," “debauchery," is prohibited. And what are these? We must admit: it will not always be easy for us to identify what is within the bounds of obscenity and what is beyond them. Moreover, these expressions are highly reminiscent of the Middle Ages (as this concept is interpreted in the common vernacular), Puritanism and monasticism, introversion and seclusion from the vanities of this world. If this were not enough, we know that the very same act can be classified as pornography or obscenity if it is presented to the general public, but if it is done in private by two consenting adults—certainly if performed with affection—no one would dream of classifying it so. I wonder if an act performed by two consenting adults in private and with affection can be “impure carnal lust.” Indeed, paternalism imposes itself powerfully in the subject matter before us, and needless to say, the answer to the question of the proper measure of paternalism will not be easily found. Thus, we cannot deny, not to ourselves and not to our fellow-men: we are walking in the kingdom of paternalism—we must remember that the concept of paternalism does not always connote something negative and is not always a disparagement—the question is only how far reaching it will be.

Finally, it is not our intention to engage in a discussion of the concept of pornography per se. This is not the issue before us. The accepted definitions of pornography are numerous, and it seems that, in view of their generality and vagueness, it is a good idea, even here, to take the path of atomization, i.e. to detail the types of material we see as obscene material and pornography. Apparently, this is the path followed by the Canadian Supreme Court, by both the majority and minority opinion, in deciding the Butler [62] case. Without voicing agreement or disagreement regarding what was said there, we seek only to point to a proper method of analysis.

11. Why does the law seek—without much success—to prohibit the distribution of pornographic material? They tell us, for example, that a pornographic film will harm the “public order,” yet it is clear that this does not mean that it is feared that the screening of a pornographic film will lead to riots. What it primarily meant is harm to “public morality," which is one of the foundations of public order. Here again the question arises: what is the basis of this “public morality”? What is the purpose of a ban on the distribution of pornographic or quasi-pornographic material? After all, it is the purpose which will determine the limits of the prohibition.

In the beginning, there was Adam and Eve, and they were in the Garden of Eden. “And they were both naked, the man and his wife, and were not ashamed.” Genesis 2:25 [64]. Then, there was no pornography, if only for the reason that there was no one to whom to exhibit it to. In the Garden of Eden, God planted “every tree that is pleasant to the sight, and good for food ... and the tree of the knowledge of good and evil.” Genesis 2:9 [64]. And, Adam and Eve ate from the tree of knowledge, thereby transgressing God’s commandment—“And the eyes of them both were opened, and they knew that they were naked; and they sewed fig-leaves together and made themselves girdles.” Genesis 3:7 [64]. Adam and Eve became ashamed of each other’s bodies, and even of God. So Adam said to God: “I heard thy voice in the garden, and I was afraid, because I was naked, and I hid myself.” Genesis 3:10 [64]. Thus it was in the beginning, and since then man has been embarrassed to expose his genitalia. This embarrassment is so deeply imprinted on our consciousness that it has always resembled an instinct or a quasi-instinct in man (as we know, the position is different in certain communities around the world). This is the case regarding the exposure of genitalia and sexual contact; an internal consideration within us demands of us and commands us to do these things in private and not in public. This is man's preeminence over beast, animal and bird. Subsequently came the community, which built walls of education and a judicial system around these quasi-instincts, converting them into “public morality.”

Following all these came the ban on discourse about these same things, which are in the private domain. Even though we know all the things we know, we shall not talk about them:

Said Rabbi Hanan b. Raba: All know for what purpose a bride enters the bridal canopy. Yet against whomsoever speaks obscenely thereof, even if a sentence of seventy years happiness has been sealed for him, it is reversed for evil.

Babylonian Talmud, Tractate Shabbat 33a [66]. We all know why a bride enters the wedding canopy; the bride knows and we all know. But we shall not speak about it. There are things that are better said in private. The act shall be performed but we shall seal our lips. When Rabbi Hanan bar Raba said what he said, there were no films, television or video, therefore, he ordained a ban on speech. However, the ban that was established was a “framework ban”—a ban that was filled with substance from time to time, according to the place and the hour. The ban on discourse, like the dissemination of pornography nowadays, is a framework prohibition. This constitutes one reason—in the instant case, the main reason—for a ban on the dissemination of pornography.

I made similar statements in Advancement [11], regarding the voicing of crude expressions in public:

[i]t is so with regard to human esthetics and so it is regarding man’s behavior outside the home. Be a man when you go out in public: among the creations, act in the manner in which people act in public. At home, man can go around naked or in his underwear—all or part—but he will not do so outside his house. This is not only because it constitutes a criminal offence, but because in public, we act a certain way. The fact that man finds himself in public obligates him, to a certain degree. This is the way of the world. While we will not require a person to speak with the same refinement as though he were visiting the President’s house, there is, however, a certain line, below which we will not sink.

Id., at 32-33. These things can particularly be applied to hard-core pornography, see, for instance, the Supreme Court of Canada’s statements in Butler [62], but are also relevant to more subdued forms of pornography. For instance, a scene featuring intimate touching lets us see what we see. A human being has certain needs, and fulfilling those needs is the way of nature. These natural acts, however, should be done in private. We will not allow them to be performed in the town square. This, in principle, is the matter before the Court. In the words of Justice Sopinka in Butler [62], at 469 (quoting other sources): we shall not condone “dirt for dirt’s sake."

To these reasons, which are inherent to human nature, we add general social reasons, such as the denigration or degradation of human dignity, women’s dignity being particularly relevant, and our fight against violence and the exploitation of minors. See Butler [62]; see also the following provisions of article 214A of the Penal Law, cited below.

The Board’s Authority and the Limits of its Discretion

12. In the present case we are concerned with the Cinematic Films Ordinance-1927 [hereinafter the Ordinance]. Section 3 of the Ordinance instructs us to establish a Film Review Board, and Section 4 prohibits the screening of a cinematic film unless it has first been approved for screening by the Board. The Board’s authority is established in Section 6(2) of the Ordinance, which instructs us, in the original English, as follows:

6. (2) Application to the Board for Authorization

The Board may in its discretion grant, either with or without conditions imposed, or withhold authority for, the exhibition of any film or any part therefore, or any advertisement of a film.

This statute’s provisions establish the framework of the Board’s authority. It is indisputable that, in the matter at bar, the Board has acted within the limits of its authority. Section 6(2) of the Ordinance provides that the Board is entitled to make the screening of a film conditional upon the deletion of sections from it (“The Board is entitled ... to authorize the screening of any film or any part thereof ... either with or without conditions imposed...”). And yet, what about the Board’s discretionary leeway in terms of the essence of a particular film? The Ordinance is a framework Ordinance: It provides for the establishment of a Board and empowers that Board to authorize or withhold permission for the screening of films, with or without conditions. The Ordinance does not instruct us how the Board shall guide itself in deciding one way or another, and what weight it shall attach to its considerations. That which was omitted by the legislature, however, has been filled by case law and common practice.

13.  First, we shall all agree that the Board’s discretion is not “absolute discretion." Even discretion described as “absolute” is not absolute in fact. HCJ 241/60 Kardosh v. The Registrar of Companies [31], at 1162; HCJ 742/84 Kahana v. The Speaker of the Knesset [32], at 91-92; HCJ 758/88, 431/89, 2901/90 Kendall v. The Minister of the Interior [33], at 527-28); this is all the more so, where the law contains no explicit indication regarding the framework of the authority’s discretion. Indeed, the lack of a statutory indication regarding the framework of the authority’s discretion never points to the grant of “absolute” discretion. In effect, bestowing absolute discretion to an authority is not compatible with either the rule of law or a democratic regime. Israel is a democracy, governed by the rule of law. This was held to be true with regard to the interpretation of the Ordinance, in other words, the Board is not “entirely free in its considerations," and limitations have been placed upon its discretion. HCJ 146/59 Cohen v. The Minister of the Interior [34] at 284. (Silberg, J.), and in Laor [14], at 429 (Barak, P.).

What, therefore, is the framework of the Board’s discretion? What considerations are the Board entitled to bring to bear and which considerations is it not allowed to take into account? Everyone would agree with respect to the following: the Board is entitled to take into account all those considerations intended to bring the statute’s purpose to fruition and which seek to maintain the arrangement established by the law. “The fundamental point is that the purpose, for the sake of which the authority was granted, and the objective that it seeks to fulfill, determine its limits.” Id. [14]. Accompanying this fundamental principle is an auxiliary rule, concerning the issue of whether or not certain considerations come within the law’s purpose. “Lacking a foothold in the wording of the law according to which it is possible to define the scope of the considerations belonging to the matter, the Court will not hurry to contradict the decision of the public body, where the question has diverse aspects, and it is likely to be at the center of a sincere controversy among people of ordinary intelligence.” HCJ 92/56 Weiss v. The Chairman and Members of the Legal Council [35], at 1595 (Landau, J.). See also HCJ 176/58 Parcel 11 Block 6605 Co. Ltd. v. The Minister of Development [36], at 1113 (Agranat, J.) This ruling, concerning “the lack of a foothold," was explicitly applied to the authority of Film Review Board; see HCJ 383/73 Avidan v. Gary, The Chairman of the Film and Play Review Board [37], at 769 (Berenson, J.).

14. And after all this—what is the scope of the Film Review Board’s authority? What are the considerations, which it is entitled—and obliged—to set before itself in deciding whatever it decides? Initially, the Board’s authority was interpreted with excessive breadth. Thus, to this effect, Justice Silberg stated in Cohen [34], at 284:

It seems to us, without getting into the minutest of detail, that the line of thinking directing the Committee in deciding whether to refuse or cancel a license must be as follows: a film whose screening is likely to offend morality or good taste, or likely to corrupt morals should be disallowed. This is because films today serve as an educational tool. We should therefore endeavor to prevent them from instilling spiritual and cultural values considered by the public to be undesirable.

Over time, the Court added and held that the Board’s authority is narrower than originally defined, and that it is not appropriate to use the paternalistic standards of "good taste" or "educational tools." In President Shamgar’s words in Universal City [10], at 28-29:

There is concern that the above measure, as defined by Justice Silberg, will be understood in too broad and sweeping a manner. In accordance with the standards that are acceptable to us, essentially in light of the special status enjoyed by freedom of expression for our purposes, we would not, today, find it acceptable to ban a script or film merely because it "infringes on good taste." The Board—and even the Court—are not the guardians of good taste, itself a subjective term. The Court is not responsible for educating theatergoers or movie viewers according to the judges’ personal artistic taste. Paternalism of this sort is foreign to our worldview. Rather, only a serious, severe and extreme infringement on a protected value can justify interference with freedom of expression.

The Court further determined that the code word is “public order,” i.e. the Board’s considerations in disqualifying a film—in whole or in part—are supposed to revolve around whether that film harms “public order,” in the broad sense of the term. This concept of “public order” is a slippery and elusive concept, and it is no wonder that courts have not defined it precisely and sharply. For our purposes, we can rely on President Barak’s words in Laor [14], at 430-31:

We have seen that the Board’s authority is to refuse or permit, depending on whether, in its opinion, the performance is likely to harm public order. "Public order," in this context, is not limited to a script the presentation of which constitutes a criminal offence. "Public order" is a broad concept, which is difficult to define, and whose definition varies depending on the context in which it is defined. In the context at bar, public order includes threatening the state’s existence, harming the democratic regime, public peace, morals, religious sensibilities, a person’s reputation, and fair judicial proceedings, as well as other matters that touch on the issue of public order.

See also President Shamgar’s opinion in Universal City [10], at 29-30.

“Public order” is a father, and a father generally has offspring. Even after we have familiarized ourselves with many of these offspring, we know that we have not met them all—after all, the very same “public order” also includes “other matters that touch on the issue of public order. Laor [14], at 431. Idem per idem. I have not said these things in order to criticize; on the contrary. Fundamentally, the concept of “public order” is an abstract framework concept, a concept with an “open texture,” an absorbent concept. Although it is not boundless, the outline it creates does not, by its very nature, lend itself to precise definition. "To each generation its seekers" Babylonian Talmud, Tractate Avoda Zara 5a [67]; to each generation its commentators. Furthermore, knowing that the Ordinance essentially does not establish a rigid framework for the Board’s considerations; and after we have learned that the concept of “public order” covers a range of flexible areas, we also know that what will apply to us—as we have already said—is the auxiliary rule established by Justice Landau: that, lacking a foothold in the law regarding a framework for its considerations, the Court will not hurry to contradict decisions taken by the Film Review Board where the issue involved is likely to be the subject of a sincere controversy among people of ordinary intelligence.

15. Still, we have not said enough. A long-established theory says that it is possible to learn about the discretionary expanse of an authority by dwelling upon the nature of that particular authority. Thus, for example, where the legislature entrusts a physician with discretion, one can conclude that the discretion is intended to be based on medical considerations. See, e.g., HCJ 193/58 Rosenberg Orthopedics Company v. The Chief Physician, Department of Rehabilitation [38], at 1659 (Landua, J.). When a government minister or the government itself is endowed with discretion, the presumption there is that this discretion is broad (though not limitless)—considering the status of the entity with whom the discretion rests. See, e.g., HCJ 162/72 Kinross v. The State of Israel [39], at 241-42.

And with respect to the Board? Is the Board’s composition indicative of its discretionary expanse? Does its composition tell us something about this Court’s ability to intervene in the Board’s discretion? The Ordinance itself does not teach us much about the Board’s composition. According to Section 3(1) of the Ordinance, the Board is to be composed of “a chairman and several members, including at least one woman,” and all of these “shall be appointed from time to time by the Minister of the Interior with the government’s approval.” See The Films Ordinance (Amended)-1948. Even if this provision provides a hint with regard to the Board’s place in the civil service system, it appears that there is nothing in the law, capable of telling us much about the composition of the Board and its status. And yet, the Courts have long respected the Board’s decisions—after they realized that it has a rich and diverse composition of prominent personalities. These are supposed to represent the public, and the Board’s decision resembles the decision of the public. As per Justice Silberg in HCJ 260/60 Forum Film Ltd. v. The Film and Play Review Board [40] at 613:

The Board is a representative public body, which reflects the various opinion prevailing among the public. This being the case, it was given broad powers by virtue of section 6(2) of The Films Ordinance-1927.

An even sharper tone was taken by Justice Berenson in Avidan [37], at 771:

The law is what it is, and the Board is a public body responsible for enforcing it. Its opinion is therefore determinative. I can barely fathom a situation in which the Court will see itself authorized and free to strike down the Board’s decision, following its careful and weighty deliberations, to permit or ban the screening of a non-documentary entertainment film. After all, the Board was chosen to represent the public’s view in this matter. So long as it exists, its opinion must be the determining one. Such is the case when the decision in the matter before us was accepted unanimously, with only two board members being prepared to recommend this film for screening, but only after significant alterations, leaving it unrecognizable. Had the Court intervened in such an extreme case, it would have been tantamount to substituting the Court’s critique for the Board’s—and this is not for us to do.

Thus, the Board has been chosen to represent the public, and it is its opinion which is determinative. Sitting on the Board are representatives of the public, they are the ones who represent the people—Vox Populi Vox Dei. “I can barely fathom a situation in which the Court will see itself authorized and free to strike down the Board’s decision, following its careful and weighty deliberations, to permit or ban the screening of a film." Forthright words. To this, Justice Vitkon added:

I see no reason for us, as a court, to engage in film critiques. Indeed, a decision regarding whether a particular film should properly be screened or not, can only be the fruit of the viewer’s taste and worldview. Thus, in vain we ask here what the "reasonable man" would conclude; the search for an objective standard here is futile. If we are at all convinced that films and plays should be subject to review prior to their screening, it is clear that only a body that represents the public, its diversity and views, can be entrusted with this task, not the Court. In this matter to, I agree with my colleague, Justice Berenson.

Similar words were spoken by Justice Landau in HCJ 807/78 Ein Gal v. The Film and Play Review Board [41] at 278:

The respondent Board is endowed with broad discretion to permit or disallow a film, by reason of it being a public body, expressing the public’s views.

 And thus, in HCJ 243/81 [21], at 426, Justice Landau said: “as a body representing the public, the Board is charged with reviewing films." My colleague, the President, also held in Laor [14], at 430, that the Board’s authority to prevent the screening of a film, said to offend public order, emanates from “the Board’s composition… that is not composed of public servants… but is instead, a ‘representative, public body’…”; and here, my brother cites the words of Justice Silberg in Forum Films [40]. We shall recall, in closing, Justice Vitkon’s statements in Noah [26], at 764, regarding the breadth of the Film Review Board’s discretion. There, Justice Vitkon criticizes the fact that the Board members were influenced by outside factors:

My words should not be misinterpreted. I am not saying that the Board members are precluded from taking public opinion into account. In fact, the opposite is true, they were appointed to represent the public, its various sectors and strata. Indeed, the public speaks through their mouths. They are, however, held to decide what is to be screened, and what is beyond the level of tolerance, in accordance with their own discretion.

16. Thus, the law is as follows: the Board’s composition is intended to represent—and indeed it does represent—the general public. Board members are not civil servants, but rather, prominent personalities who reflect the mood of the nation. This leads us to conclude that the Board’s decisions should be respected. Of course, we will not say that the Board’s decision is the be-all-and-end-all of every case, but only in rare instances will we interfere in its decision.

The Board before us is a “representative Board,” as were its predecessors. Sitting on it are four journalists, three authors and educators, two Middle East scholars, four legal experts, a sociologist, three teachers, a police official, and two civil servants. Would it be difficult for us to say that they represent the public at large? Twelve members attended each of the most recent Board discussions. Eight of them requested that certain segments—tiny segments—be cut from the film, whereas four requested that the entire film be disqualified. What good reason is there for us to interfere with the Board’s decision?

17. Generally speaking, at this time, we have not found a good and proper reason for interfering with the Board’s decision, as did President Barak, who instructed: Lay not thine hand upon the film, neither do thou any thing unto it. Cf. Genesis 22:12 [64]

Interim Summary

18. We have seen the framework of the Board’s authority and the limits on its discretion. We learned that the Board has acquired the authority to prohibit the screening of pornography and obscene material, and we know that these are difficult to define. The case law that we have reviewed relates that the Court only rarely intervenes in the Board’s decisions to disqualify the screening of a film, in whole or in part. In particular, this is so because we know that the Board is a body that represents the public. Against this backdrop, and following an examination of the film before us, our conclusion must be not to interfere with the Board’s decision. We are not under any duty to share the Board’s opinion. Indeed, if I were a Board member, it seems to me that I would approve the film for screening without any cuts. However, this is not the matter that we have to decide. The legislature granted the authority in question to the Board—to the Board and not to the Court. Suffice it to say that I have not been provided with a good and proper reason to interfere with the Board’s decision. In my opinion, the doctrine of separation of powers requires us to refrain from interfering with the Board’s decision. We should also remember that the separation of powers is one of the fundamental principles of the rule of law. This signifies that the Board’s decision should remain precisely as it stands.

19. This summary does not appear to reveal any differences of opinion—at any rate, no decisive differences of opinion—between President Barak and myself. But it is here that our paths diverge. And, as we bid each other farewell, it is important that we pinpoint precisely the point of our separation.

The Board requests that several segments be deleted from the film, maintaining that screening these particular segments, all of which are “pornographic," “sex segments," “is capable of causing severe, serious, and grave harm to societal sensibilities and public morality." President Barak, for his part, does not examine these specific segments on their merits—either in whole or in part. Moreover, he does not make any effort whatsoever to contradict the Board’s qualification of all these segments as pornographic. Thus, our assumption must be that those segments, which the Board sought to delete, individually and all of them together, are pornographic. In effect, this is how my colleague characterizes those segments intended for deletion “which, if taken in isolation, it would be possible to delete, by reason of their being pornographic in nature.” Supra, para. 21. Consequently, since they are pornographic in nature, it is proper that these segments be cut from the film, and the Board’s decision to cut them is, therefore, a decision taken lawfully and within the framework of its authority to delete. How, then, does my brother reach the conclusion that the Board must allow the film to be screened in its entirety, including these same “pornographic” segments? For this purpose, my colleague clings to a two-pronged  test, composed of “the work as a whole” and “the artistic value” of the work tests. In traversing this corridor, he would like to escort the film to freedom. Is this possible?

The Two-pronged  "Work as a Whole" and "Artistic Value" Test

20. The two-pronged  “work as a whole” and “artistic value” test is not new. It finds shelter in our law. The first part of the test is the formal examination of the work, which must be done from the perspective of the “work as a whole." As such, individual segments of the work—those parts that are allegedly "pornographic"—should not be taken in isolation. Were we to do so, the entire piece would be deemed pornographic, as these "unkosher" segments would contaminate the entire work, rendering the entire work “impure." Instead, we probe the piece “cumulatively," as it “came out of the factory," and integrate the allegedly pornographic segments into the rest of the work, itself untainted by pornography. An artistic work cannot be cut to pieces, and we cannot take it upon ourselves to independently probe individual sections. Here ends the formal aspect of the test, this is to say, the “work as a whole aspect.” it instructs us to take the work as a whole, as it came into the world, and only in this manner can it be judged.

21. The second part of the test instructs us to proceed as follows: in applying the “work as a whole" test, will it be possible to deem the given piece a work of art, due to artistic value of the work as a whole, beyond those segments tainted by pornography? Are those segments part and parcel of the piece in its entirety, such that they are “swallowed” by the whole? If so, the work will be found to have artistic value: the impurity is deemed to have been absorbed by the whole; the beautiful is deemed to have compensated for the ugly. If, on the other hand, we shall find that the work was only created in honor of those tainted segments, we shall conclude that the work has not successfully passed the “artistic value” test. In the words of Justice Landau in Omer [23], at 412:

Respecting literary material, it is sufficient, for our purposes, to assert that we have before us descriptions of sexual subjects, whose only purpose is to arouse the reader via repugnant filth for its own sake. Such portrayals, in and of themselves, are capable of corrupting morals, as per section 179. On the other hand, we must take an enlightened view which, requires us to reconcile ourselves with a certain measure of discomfort according to what is deemed acceptable nowadays, regarding explicit sexual descriptions, provided that these appear as an integral part of a work boasting literary or scientific value, thereby compensating for its pornographic aspect. In such a case, we shall assert, in the words of the United States Supreme Court, that a book having "redeeming social value," shall redeem the obscene from its obscenity.

And in the words of the United States Supreme Court in Miller [50], at 24, the issue is:

[w]hether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In adopting this test my colleague, President Barak, seeks to examine the film and, in finding that numerous film critics were convinced that the film has artistic value, my colleague concludes that the Board is precluded from censoring the film. My colleague does not judge these segments for himself; in his mind, the film critics’ opinions were decisive, leading him to conclude that the Board’s decision should be reversed. In his own words, supra at para. 18:

These opinions, which were presented to the Board and to the Court, emphasize that the film does not encourage sexual arousal. On the contrary, it conveys an “anti-pornography” message.

Later on in his opinion, my colleague cites a German court, dealing with a criminal case, stating that the film “not to be pornographic, as it was not intended to sexually arouse the viewer," and agrees with the court’s opinion, see supra para. 19:

It seems to me that, in light of the above, the Board should have determined that the film has serious artistic value, which precludes its classification as a pornographic film. The Board was presented with a factual basis according to which there was an assessment affirming the film’s serious artistic nature. Based on these facts, the Board should have concluded that the film is art.

And, subsequently, in paras. 20-21 of his judgement.

[t]he test that the Board must employ is the “work taken as a whole” test. One must not scrutinize a number of isolated sections with a “magnifying glass," and ask whether these sections, per se, are pornographic. Instead, one must look at the entire work “from a distance” and ask whether this work, which integrates these and other sections, is a film with artistic value. The Board did not perform this examination.

21.     I have concluded that there is no choice but to strike down the Board’s decision. Indeed, if the film before us had constituted obscene material, there would have been no room to interfere with the Board’s decision. The trouble is, that, according to the facts presented to the Board, the film as a whole is not pornographic, despite sections of it, which, if isolated—and not taken as part of the work as a whole—could be perceived as being so. According to the proper criteria, the Board should have determined that, in view of the differences of opinion regarding its artistic value, the work should be classified as having artistic value. It should have determined that, on the basis of the work taken as a whole test, it is unwarranted to delete sections which, if isolated, could be deleted as being pornographicSo held my colleague, despite the conflicting opinions presented to the board, which, for their part, saw the film as pornographic.

22.  To my chagrin, I find myself unable to concur with my brother’s opinion. For my part, I believe that the “work as a whole” test does not apply in the matter at bar—it certainly does not apply with the same force that my colleague ascribes to it. Indeed, the same may be said with regard to the test of the work’s “artistic value." These two tests—which is really one two-pronged test—were born in another other area of the law. Thus, even if it is possible to import them to the present case,  their strength is weakened beyond recognition when applied to the case at bar.

The Two-pronged  Test: Invented for Criminal Law

23. A study of the case law setting forth the two-pronged  test teaches us that this test—from beginning to end—encircles the concept of “obscenity”; that the concept of obscenity is that which brought about the birth of the case law, because the latter was designed—from beginning to end—to create a fence around the prohibition on “obscenity."

In Omer [23], for example, Omer was tried for possession of “obscene material” for the purposes of sale and dissemination, as defined by the criminal law. In Butler [62], the subject of the hearing was the indictment of a person for the sale and possession of obscene material, as defined by the Canadian Criminal Code. The case of “A Book Named John Cleland’s Memoirs of a Woman of Pleasures” [54] (also known as “Fanny Hill”), involved a petition filed by the Massachusetts Attorney-General, seeking to declare the book obscene. In Miller [50], the deliberations concerned the defendant’s indictment for dissemination of “obscene material." Roth [49] was also a criminal case: some of the defendants were indicted for the offence of sending “obscene” material by mail, contrary to the Federal Obscenity Statute, and the others were tried, under the California Penal Code, for the offence of possession and sale of obscene or indecent material. The Grove Press Inc. [53] case discussed the book Lady Chatterly’s Lover, the issue being whether the book may be deemed “obscene” and could therefore not lawfully be sent by the mail. This was also the issue in One Book Entitled Ulysses [52], where the Court examined a legal provision prohibiting the importation of “obscene” printed material.

24. In this manner, the two-pronged test revolves around the concept of “obscenity” and its boundaries are constituted by the criminal law and related legal provisions. In the words of Judge Bein in DC (Haifa) 404/82 [46], at 526:

It is unwarranted. despite the various expressions adopted by the legislature, to distinguish between the "indecent or obscene" test in Section 42 of the Customs Ordinance and the "indecent or obscene" test in Section 12 of the Post Office Ordinance (New Version) and "obscene material" in Section 214 of the Penal Code.

This result, holds Judge Bein—and we concur—is desirable and it involves “the adoption of one standard for all the provisions which are in pari material and which are intended to protect—although by different means—the same social interest.” Id. This interest is to prevent the dissemination of “obscene” material.

25. When the context of the two-pronged  test against “obscenity” is set out, its logic and reason are manifest. Take Reuben, who is charged with the crime of disseminating “obscene” material. Reuben admits to disseminating the material but, in his defense, asserts that the material he disseminated was not “obscene." When the prosecution points out the “obscene” segments in the material, Reuben replies in his defense that he did not disseminate those segments individually, but rather as an integral part of the “work as a whole.” As he disseminated a whole work—and not segments of a work—“the work as a whole” must be examined. Only if the “work as a whole” is “obscene," claims Reuben, is it possible to lawfully convict him. Reuben further and points to the work’s “artistic value,” the second prong of the two-pronged test.

Formulated as such, we can understand that the two-pronged test acts as “internal” protection for the crime of “obscenity." In other words, the two-pronged test is intended to determine the precise scope of the crime of “obscenity" Indeed, a work, which possesses, in its totality, “artistic value,” according to its very characterization, will therefore not be considered “obscene” material. Art precludes obscenity, and vice-versa. Art and obscenity shall not live under one roof. Essentially, the two-pronged test is meant to serve as a built-in protection within the definition of the crime of “obscenity."

26. As we have seen, the two-pronged test was born and lives in the arena of criminal law. What does my colleague, the President, suggest we do? He suggests that we go to the criminal law, take the test in our hands, and plant it permanently into the considerations which the Board takes into account. We respond with a difficult question: is it indeed possible to draw an analogy between the area of criminal law to the powers—and particularly to the considerations—of the Board? Is the analogy indeed proper and legitimate? The answer, in my opinion, is negative for many reasons. We shall now expound upon these reasons, one at a time.

The Board’s Authority is Not Restricted to the Crime of Obscenity

27. To begin with, the Board’s authority is not restricted, by law, to obscene material as it is defined under the criminal law. Indeed, “when the Board is convinced that a play features a clear violation of an express penal stipulation in the empowering law ... it must not be a party to a breach of statute and it is entitled to restrain the presentation of the play.” HCJ 351/72 Keinan v. The Film and Play Review Board [42], at 815 (Landua, J.) However, even if the play does not contain obscene material, and even if the play does not amount to a criminal offence, the Board is entitled to prohibit the screening of a film—in whole or in part—if, in its opinion, the film offends “public order," “public morality," “social morality," and the like. In the words of Justice Barak in Laor [14], at 430:

It seems to me that the statute must be interpreted in light of its rationale: the Board’s substantive authority is not limited to merely banning those films or plays whose screening would constitute a criminal offence. The statute’s language in no way suggests a limitation of this nature. Neither is such a limitation required by the background of this statute’s enactment. Indeed, the justificatory purposes underlying the statute are numerous, and include preventing harm to public order, whether the harm in question flows from the commission of a criminal offence or whether it results from an immoral act, or any other act that offends the public as a whole.

To this effect, see also Justice Barak’s judgment in Universal City [10], at 37 n. 4. Compare with section 6 of the Telecommunications Law-1982, which distinguishes between films whose screening the Board did not permit, and pornographic material referred to by the Penal Law.

If this is the law—and it is—why should we “import” the two-pronged test from the area of criminal law to the area under consideration here? The two-pronged test is not a “modular” test, applicable in all places and at all times; it has adapted itself to criminal law, and therein it resides. What use shall we make of the two-pronged test in the Board’s considerations? After all, even if the film does not amount to an “obscenity," the Board is entitled to prohibit its screening— if it harms the public order—as the scope of application of “public order” is broader than the scope of “obscenity."

Limited use of the two-pronged test may also be made with regard to the Board’s authority. However, the test’s content will differ from its content in the criminal law context. It will somewhat narrow the range of the Board’s considerations, but will not enable it—as it would in the context of the criminal law—to determine a verdict. In other words, whereas in criminal law, the two-pronged test has the strength of giants in terms of its ability to immediately negate a transgression, in the matter at bar, it must be defined modestly, as being, at most, an ordinary consideration, among others.

The Different Functions of the Court in Criminal Law and Film Censorship

28. Second, in being required to interpret a law, the Court stands directly in front of the law, and in the process of determining the proper and correct interpretation of the law, the Court uses the tools at its disposal. The legislature has said its piece, and now the Court must “knead” with the ingredients before it. It is such in the arena of criminal law, and also in the arena of civil law. It will also be so if the Court is required to determine whether someone has committed the offence of “publication and display of an obscene matter," or if he has committed the offence of “offensive publication on advertisements." Those offences are defined, respectively, in sections 214 and 214A of the Penal Law. Those offences are defined as follows:

214. Publication and Display of an Obscene Matter

a.Every person who commits one of the following acts is guilty of an offence and liable for imprisonment for a term not exceeding three years:

1.Publishing a pornographic publication or preparing it for the purposes of publication;

2.Exhibiting, organizing or producing the display of pornography:

A.in a public area or

B.in a non-public area—unless it serves as a dwelling place or serves an association, whose membership is restricted to individuals eighteen years and older.

b.Every person who uses the image or body of a minor in the publication or display of obscene matter is guilty of an offence and liable to imprisonment for a term not exceeding five years.

214A. Offensive Publication on Advertisements

a.Every person who publishes an offensive publication on a placard is guilty of an offence and is liable for imprisonment for a term not exceeding six months or a payment of a fee, three times the amount of the fee provided for in section 61(a)(1).

b.For the purposes of this section, an "offensive publication" shall be considered one of the following:

1.a picture of nudity or a picture featuring a man or woman’s private parts;

2.a picture featuring sexual relations or sexual violence, or that contains sexual degradation or humiliation, or that features a person as a sexual object, to be exploited

3.A picture featuring partial nudity, of a man or woman, which offends the public’s, or portions of the public's, moral sensibilities, or corrupts public morals, or harms minors or their education;

c.Advertisements shall be defined as—advertising signs placed on the side of roads, inside buses, public transportation, or on their outside of bus stations. This also applies to notice boards under the authority and supervision of a locality.

In considering the offence under Section 214 of the Penal Law, the Court meets “obscenity” face-to-face, and must decide whether the publication displayed is an “obscene” publication or not. The same is true for the offence defined in Section 214A, where the Court must decide whether a certain publication features “sexual degradation or humiliation” or if it displays a human being “as a sexual object to be exploited." This is not to say that the Court is precluded from seeking the assistance of expert testimony, for example, in relation to the matter of “the artistic value” of a certain work. At the end of the day, however, it is the court's duty to decide, and it will shoulder the responsibility. The Court is the body entrusted by the legislature to determine the scope of application of “obscenity," and in outlining its own powers it has established the two-pronged test. Compare Crim. App. 1127/93 The State of Israel v. Klein [43], at 499-501.

And so it is throughout the criminal law. So it is in civil law. It is not so, however, in the matter at bar, and this for two separate reasons, sharpening the difference between the various contexts. First, in the matter at bar, the face-to-face struggle between interests is not encountered. Second, the criterion for the test in the present case does not concern the concept of “obscenity” but rather a different, more general societal standard—pornography, which we dwelt upon in para. 27 supra. Moreover, the power to censor films is conferred, first and foremost, not on the Court but on the Board, composed of public servants, and supposed to apply general standards of “public order." In the case at bar, we are not at all referring to the “interpretation” of a statute, but rather to the application of a certain “public order," and the body responsible for that “public order” is the Board. Indeed, unlike the exercise of statutory interpretation, the present case involves the Board—the body entrusted to set the relevant standards, and the discretion with which it is endowed. In light of the above, the Court’s role is to review the Board’s discretion, and unlike the matter of “obscenity” and criminal law, the Court does not stand directly opposite the law. Fundamentally, the Court, in cases such as the one at bar, is not supposed to decide between the various interests pulling in opposing directions. The subject of the hearing before the Court is not the struggle of interests as such. The Court’s business is to review the Board’s decision, and in conducting this review it is held to observe the struggle of interests through the veil of the Board’s discretion.

We do not mean to say, of course, that the Board’s discretion is the be-all-and-end-all. Nevertheless, we cannot ignore the fact that the legislature has established a type of “division of labor” between the Board and the Court, and the Court, as a servant of the Rule of Law, is obliged to preserve this “division of labor." We must not treat the discretion that the legislature has imparted to the Board as though it did not exist. We must respect the legislature as well as the Board members, as we explain below.

29. In this context, the opinions expressed by cinematic art experts were poles apart. Thus, alongside experts who praised the film as a work of art, we found critics who saw it as nothing more than a run-of-the-mill porn flick. My colleague believes that the praise bearers have the upper hand, if for no other reason than that we are concerned with freedom of expression. In this context, my brother says, supra  para. 15:

It is sufficient that there is an opinion, even if it is controversial, with respect to the (serious) artistic value of a work … Indeed, if it is possible for us to err, we should err on the side of promoting freedom of expression and freedom of artistic creation.

I find it difficult to agree with the above. First, the references my colleague brings in support of his viewpoint are irrelevant to the matter at bar, since all of them concern criminal cases dealing with obscene publications, apart from one reference which revolves around copyrights and certainly does not bear directly upon our matter. Under criminal law, no one would dispute that differences of opinion regarding the artistic value of a work should be interpreted to the defendant’s benefit. Indeed, just as, in criminal law, significance attaches to the work’s artistic value—as an element that negates its being qualified as “obscene"—so too does value attach to differences of opinion among the experts. It is arguable that differences of opinion are sufficient to raise a doubt as to whether a certain publication is an “obscenity," and, as such, these differences of opinion are sufficient to bring about the acquittal of a defendant. In the instant case, however, the opposite is true. The underlying assumption is that the film, which is the subject of the hearing, contains pornographic segments, and hence the “burden” is on the applicant to prove that the film as a whole is of an artistic nature. Accordingly, since the onus is on the film applicant, one may contend that differences of opinion regarding the film’s artistic value must actually be interpreted to his detriment. We do not, however, believe that this opinion will take us to such far-reaching lengths.

Moreover, as we have seen, the Board has been given discretion in deciding whether to allow or disallow the screening of a particular film. At any rate, the Board is authorized to prefer Reuben's evaluation over Simon's. If even this discretion has not been granted, then what has it been entrusted to do? In other words, in a criminal proceeding, the Court is the body responsible for determining “the artistic value” of a work; and this determination may be based on the testimony of experts on the subject. As an aside, it should be noted that, even in this connection, the Courts have expressed grave doubts, see, e.g., Omer [23], at 413-14. However, in relation to a ban on the screening of a film, the Board is the relevant body, and is charged with ascertaining the film’s “redeeming qualities." True, the Court will not refrain from interfering with the Board’s decision in appropriate cases, but we shall not be able to pass over the Board’s discretion as though it did not exist. I fear that my colleague’s way leads to a wholesale invalidation of the Board.

An Additional Difference Between Criminal Proceedings and the Proceedings Before the Board

30. Third, criminal law sees in black and white: the accused is either acquitted or convicted. There is no partial-acquittal or partial-conviction with respect to the same charge. Even regarding the criminal charge of “obscenity," it is possible that the Court will either find that the defendant has published an “obscenity” and will convict him, or it is possible that the Court will find that the charge has not been proved and, accordingly, will acquit him. The proceeding follows an “either/or” path. The path pursued by the Board is not so. The Board, for its part, is both competent and entitled to decide “in installments," so to speak, and it is undeniable that the statute has expressly empowered it to “grant ... or withhold authority for, the exhibition or of any film or any part thereof." See the Ordinance, § 6(2). We are all aware that this power is characteristic of public law but foreign in body and spirit to criminal law.

Therefore, a permit or license may be granted to parts of a film. This is an express power with which the Board is endowed. By conferring the power to disqualify parts of a film, not only did the legislature place the Board in a different camp from that of the criminal law, but in so doing, the legislature showed us that it is aware of the possibility that parts will be clipped from a film; as if it sought to instruct us that alongside considerations for allowing or disallowing the screening of a certain film, and until the Board decides to ban the screening of a film, it may also consider the alternative possibility of deleting certain parts from the film. Nowadays, we call this “the rule of proportionality." We do not mean to say—nor have we said—that the very conferral of this power on the Board entitles it to make use of this power in any way it pleases. Nonetheless, we have learned that there is no similarity between a film placed on the table of the Film Review Board and the publication of “obscene” material, which is placed before the Court: judgment of the former may be a divided judgment, but not judgment of the latter. Furthermore, the Board’s authority to order the deletion of segments from a film is likely to show us that the “work as a whole” test does not have the same force in this context as it does in the area of criminal law. Indeed, the Board’s very authority to cut segments from a film illustrates that even if the “work as a whole” is not pornographic, the Board nevertheless has the power to delete certain segments that it deems unfit for screening, because they are harmful to “public morals"—whether by reason of their being pornographic or almost pornographic, or for any other reason.

Additional Reasons for Not Intervening in the Film Review Board’s Decision

31. Fourth, we cannot disregard the striking difference between a book and a film. In Avidan [37], at 770, Justice Berenson said that “reading is not similar to an potent visual presentation." Justice Landau also spoke of “the special power of persuasion inherent to visual material.” HCJ 807/78 [41], at 278. And in view of the fact that the impact of a film can be greater than that of a book, the Court must naturally respect the Board when it rules as it does, and all the more so when it reaches its decision after holding numerous in-depth discussions.

Furthermore, we are all sensitive to prohibitions on freedom of expression—or to restrictions thereupon—regarding the spoken or printed word. Our sensitivity to these modes is greater than our sensitivity with regard to restrictions imposed on obscene films. As stated by the United States Supreme Court in Kaplan v. California, 413 U.S. 115, 119 (1973)[56]:

A book seems to have a different and preferred place in our hierarchy of values, and so it should be.

It is possible that the traumatic events of the past—books being burnt at the stake—continue to influence us, even in our day. And perhaps there is a different reason for our attitude. It is also possible that our taste—the taste of our sons, grandsons, and great-grandsons—will change. However, at this time, the book and the spoken word have a loftier status than that of the film, and this cannot be ignored. Compare A. Rubinstein, The Constitutional Law of the State of Israel 772-74 (1991).

32. Fifth, in general, we can say that the audience that goes to see films is, on average, different from the audience that reads books, and as has been said many times, the audience that watches films—a sector which mainly consists of youth—is exposed to more harmful influences than the audience that reads books. See, e.g., H. Fenwick, Civil Liberties 180 (1994). This difference too, per se, is capable of enlarging the extent of the Board’s discretion, and, in any event, reducing the Court’s discretion when intervening in the Board’s discretion.

33. One final note: quantity is not converted into quality. But quantity has its own impact, and so it is in the matter at hand. In the case involving One Book Entitled Ulysses [52], the court noted

The erotic passages are submerged in the book as a whole and have little resultant effect.

72 F.2d at 707. Can we say this about the film before us? Certainly not. The segments that the Board would like to see deleted from the film under discussion are not submerged in the film as a whole: the entire film is cut from the same cloth but some segments are more prominent than others. It seems that this factor, too, has an impact on the two-prong test.

Is "Artistic Value" Applicable to this Matter?

34. I summarize before I begin: the two-prong test will not apply to the case at bar, certainly not with the same force that is ascribed to it in relation to the obscenity offences in criminal law. The transplantation of the two-prong test from the area of criminal law to the area of film censorship is out of place.

35. Finally, and perhaps most importantly, in the area of criminal law, it has been held—and rightly so—that a work’s “artistic value” is sufficient to extract it from the realm of “obscenity," that the two are mutually exclusive. The situation is different regarding the screening of a film for the public at large. Ultimately, the real question in the instant case does not revolve exclusively around the film’s artistic value—as such—but rather around the possible deleterious impact of the film on its viewers. And here, with respect to impact on the viewer, neither the Board members nor the Court itself—and they are the “reasonable men”—are less expert than the art experts. Indeed, the Board members—and, similarly, the Court—can and may be assisted by the opinions supplied by experts in the field, but these opinions shall not be determinative or bind either the Board or the Court. These things were clearly and explicitly stated by Justice Landau in Omer [23], at 413:

[I]n the face of arguments asking us to reconcile ourselves with the publication of material that is generally considered pornographic, by reason of the publication’s importance to advancing significant scientific goals, it will be appropriate for the Court to hear expert testimony regarding the publication’s scientific value. This, however, is not the case, when the argument advanced is that the work’s social value resides is its literary value. Literature is written for the public at large and the author’s work is subject to the public’s critique. Indeed, while literary review is a respected profession, requiring particular expertise, these reviews are also written for the public, seeking to convince via reasoning understood by any educated person, so that it may be understood with the help of general knowledge alone. Thus, even if experts and reviewers such as these are permitted to testify, in the end, the judge will have to decide for himself, among conflicting opinions, according to his own understanding and knowledge. His consideration of the matter shall outweigh all these expert opinions. This being the case, expert opinions of this nature may be presented to the Court, even in the parties’ arguments, and literary experts may be heard.

These words were uttered regarding the submission of expert opinions in a criminal hearing, involving the publication of a book. All the more so will this rule apply to expert opinions presented before the Board, concerning the screening of a film. As noted above, the authority in these matters rests first and foremost with the Board—not the Court. The Court’s role is therefore not that of a first instance decision maker, but rather of a body intended to supervise and review other decisions.

36. And so, the law in Israel stipulates, and explicitly so, that it is not a film’s “artistic value," which determines whether it harms—or does not harm—“public order," “social morality” and the like, but rather the nature of a film’s impact on its viewers. The test is one of result, not of art and intention. And in the words of my colleague, Justice Barak in Laor [14], at 430-31:

We have seen that it is within the Board’s authority to consent or refuse to hand out a permit, if, in its opinion, displaying the script is likely to offend public order. "Public order," in this context, is not limited to those scripts whose publication constitutes a criminal offence. Rather, "public order" is a broad concept, not easily defined, which changes in function of its surroundings. It can mean threats to the state’s existence, harm to the democratic regime, or harm to public peace, morality, religious sensibilities, a person’s reputation, or fair legal proceedings. All these are all encompassed by "public order." The relevant test for ascertaining harm to the "public order" is results oriented. Thus, the question is not whether or not the script boasts an adequate degree of artistic value. The Board is not an art critic, nor is it a body responsible for handing out artistic grades. "The sufficiently brilliant or open-minded clerk, capable of and willing to distinguish between good and bad ideas, between good and bad art, has yet to be born." The question is whether presenting the play, be its artistic value what it may, threatens to harm public order. Hence, the question is also not whether the play properly reflects the reality it seeks to describe or not. The question is whether presenting the play, be its truth what it may, is likely to harm public order.

The issue of “artistic value” is relevant in determining whether the film is “obscene”—for, after all, “artistic value” pushes obscenity aside—however, regarding the question of a film’s impact on “public morality," the issue of art, per se, is itself pushed into a corner.

If we adopt this test that has been accepted in the case law, the following conclusion in the matter at bar will automatically emerge: the experts’ opinions will have negligible value, meager strength, and the determination regarding the question of the film’s impact will depend—in principle—on the Board members’ wisdom: as people who emerge from among the people and who represent the people. As one of the members stated at the Board meeting held on August 8, 1994:

When viewers come to see the film, they do not bring with them experts who will tell them if the film is artistic or not. To a very great extent, we represent the general public, equipped with nothing other than what its eyes can see.

Indeed, the Court will review the Board’s discretion, and in performing this review, will be guided by the fundamental principles of Israeli law, including freedom of expression. At the same time, however, the Court will not be entitled to disregard the Board’s opinion.

37. A film’s artistic value is significant, yet no less importance is attached to conflicting values, namely, the values prohibiting violence, preserving human dignity, “public morality," and the like. Possibly, art experts consider these conflicting values to be inferior to that of “art in its purest form." Who, however, appointed the art critics as supreme judges in the task of striking a balance between the values?

In my view, any evaluation—be it in law, morality, religion, art, politics or daily life—reflects a decision between various interests and desires, each pulling in their own directions. The decision may be a sharp, one-sided decision or it may reflect a compromise, but in each case the decision will be made by the “authorized individual." For instance, in institutionalized religion, the decisions will be made by the religious clerics; and in art reviews, the art critics, literary critics, theatre critics, film critics, and the like will be those tipping the scales. It is possible that differences of opinion will emerge among authorities; it is possible that it will lead to the creation of schools of thought, a majority opinion and a minority opinion and other variations. Thus, when the “art critic” reviews the value of a certain film, his decision will, in the end, amount to a choice between diverse considerations. However, one way or another, the decision of the “cinema art expert” will be a decision of a film aesthete, a decision made by a person of the arts.

In applying all this to the matter at bar, the following may be said: It seems that no one would disagree that the film "L'Empire Des Sens" is one continuous series of sex acts and sex scenes between men and women. It also seems that no one would dispute that the deletion of certain excerpts from the film, and the screening of these excerpts individually, would reveal scenes infected with pornography to their very core. Even cinema art experts would admit this to be the case. Yet, some of these same experts (some—but not all) would also tell us that, in viewing the entire film, we would know that we have seen a piece of art, and thus it is incumbent upon us to judge the film as a whole. I am prepared to respect these art critics’ opinion. I shall respect their judgment, and at a cinema art seminar, I shall open my heart to their words. But these art experts’ opinion cannot be what determines either the Board members’ opinion or our opinion as judges.

There are two reasons for this: First, the way in which the Board members—and the Court—think and judge is different from the way of the art experts. The latter are concerned with art in its simplicity, art in its “purest form," and general aesthetic values can sway their opinion, conquering all scenes infested with pornography. The Board members—and the Court—have a different viewpoint. This is what the law commands of them, and in making their determination, they must attach different weight to the factors. Their concern is not art in its purest form, but rather the film’s impact on those who view it. Indeed, the Board members can and may attach weight to the art experts’ opinion; the Board’s decision too is a compromise of sorts, and we are all in the same boat. However, in my opinion, the Board members are prohibited from attaching decisive weight to the art experts’ opinion; they must not feel compelled to walk in the art experts’ footsteps, if only because the role assigned to them by the legislature is different from the role of the art experts. If the Board members embrace the experts’ opinion as is, I believe they err in interpreting their role, for the Board’s “balancing norm” and the art critics’ “balancing norm” are two different norms.

My colleague, the President, does not discuss the content of those short excerpts which the Board wishes to cut from the film. He settles for the film experts’ opinion, holding that the judgment should be rendered according to their opinion. This absolute delegation of discretion to film experts in my view is inappropriate. Regardless of our opinion of the Board, we must bow our heads before the law, and the law provides that discretion has been granted to the Board, to it and not to the film experts.

Secondly, even if we had said that the art experts’ considerations and the Board’s considerations were the same—or even similar—it would still be forbidden for the Board members to delegate their authority and scrape and bow before the art experts’ decision. According to the Ordinance, the authority to censor films was granted to the Board—to it and not to any other body. The Board is obligated to exercise “independent” discretion, and it must not delegate this discretion and its authority to others. See, e.g., II B. Bracha, Administrative Law 43 (1996).

38. The ensuing conclusion is that the Board is prohibited from adopting the art experts’ opinion merely because these opined the way they did. The same has also been said concerning the interpretation of “obscenity” in criminal law, see supra, para. 35. This principle is also, a fortiori, applicable to the issue at bar—where the legislature placed discretion in the hands of the Film Review Board.

39.  Let us illustrate this point so we may learn from it: there is a play which is praised to the heavens by all the experts. They say it is a classic, a glorious work, pure art, and truth for generations to come. And it is indeed such a play. But there is a problem: in the middle of the play, and as an integral part thereof (“the play as a whole”), the male lead has intercourse with the female lead—on the stage and in full view of the audience. They act precisely as did Adam and Eve before eating of the Tree of Knowledge: they are not ashamed. The play lasts approximately two and a half hours, whereas the sex act lasts only five minutes. It is truly submerged in the play as a whole. Everyone agrees that the sex act is a natural follow-up to what transpires prior to it, and that what comes after it is a natural follow-up to the sex act. The copulation is, without a doubt, an integral part of the play. It is wonderfully interwoven into the play, truly the work of a skilled artist. Everyone (or almost everyone) is happy and generous about it except the Play Review Board (which today is nothing but a legend). It rules that the sex excerpts must be removed from the play, or, at least, the message of the sex act must be conveyed to the audience in a different manner.

Would anyone among us, legal practitioners, open their mouth or raise a finger to object?

Before us is an example of the Board’s right to delete excerpts from a film, even if the “film as a whole” is “art." There are  “pornographic” segments that are so strong and make such an impression that they stand independently and warrant that the Board address them specifically. Even if the description of the continuous sex acts between Lady Chatterley and the forest ranger is identical to the display we have just watched on the stage, each must be judged for itself: one will not be disqualified whereas the other may be. Reading is unlike seeing, and the impact of seeing is a thousand times greater than that of reading or merely listening.

40. Furthermore, the petitioners willingly agreed to delete two excerpts from the film. One excerpt depicts the “abuse of the sexual organ of an old man by children," and the other “sexual abuse of a boy." When the petitioners themselves waived the screening of these two excerpts, it obviated the need for us to express our opinion regarding these two parts. The question before us, however, is a question of principle and, in questions of principle, we shall not decide on the basis of the petitioners’ stance. These excerpts are an “integral” part of the film. The art experts are full of praise for the film that includes those segments, and we have not heard them say that the said excerpts deserve to be deleted. And here, the question presents itself in full force: acceptance of the art experts’ view—as per the President’s opinion—almost automatically compels us to approve the film as is, including the excerpts featuring children; after all, the experts in the field have spoken. Is this what my colleague truly means? Shall we in fact approve excerpts featuring sexual abuse involving children merely because art experts did not find any flaw with their being integrated into the “film as a whole”? Whereas if it is possible to disqualify these segments—even without the petitioners’ consent—what is the difference between these and other excerpts which the Board sought to disqualify?

Prior Restraint vs. Ex Post Facto Restrictions

41. Israel’s judicial system examines restrictions on speech through several lenses. These include the a priori publication bans (as in the matter before us) and the imposition of ex post facto criminal liability in respect of a prohibited publication (for example, for the publication and exhibition of obscenity and an injurious publication, as provided by sections 214 and 214A of the Penal Law). My colleague, the President, characterizes the a priori restriction as the most severe, whereas he classifies the criminal sanction as a restriction of less severity. In his words, in Universal City [10], at 35:

The restriction of freedom of expression takes various forms. The most severe restrictions are those which prevent the expression in advance. An a priori ban prevents publication. The damage caused to freedom of expression is immediate. A less severe restriction is the criminal or civil liability of the person uttering the expression. The expression sees the light of day, but the person uttering the expression bears the responsibility "post-facto." If the a priori prohibition "freezes" the expression, then after-the-fact responsibility "chills" it.

If we were to anthropomorphize freedom of expression and position it at center stage, we would agree that the a priori ban is the heaviest restraint of all. That is because an a priori ban on a publication prevents its very birth, while the criminal sanction assumes that the publication has already been published. Preventing the publication’s birth is more severe, from the publication’s point of view, than imposing a sanction on the publisher after the publication has already seen the light of day.

However, it is arguable that it is not the publication, but rather the publisher or author, who takes center stage. Freedom of expression is nothing but a concept essentially intended to serve man. Man is the purpose, and freedom of publication is nothing but a tool, a means for improving man’s situation. In a country such as ours, given the choice, I would rather that the authorities prohibit me from publishing, thereby forcing me to seek a remedy from a court of law, than that I be tried in criminal court and risk being sent to prison, or even carry on my back the hump known as a “suspended prison sentence," with the conviction recorded in the books. I take the liberty of assuming that my colleague is also of the same opinion, as is everyone else. In the final analysis, a pre-ruling is preferable to an after-the-fact sanction. And since criminal law is the severest of all, the judicial system adds reservations to a conviction under the law, both in the interpretation of the law, in the amount of evidence which is required for a decision, and in the diligent preservation of the defendant’s rights.

In the margins of the issue—and perhaps not so much in the margins—we shall add that, as is known, the United States judicial system meticulously safeguards freedom of expression, particularly when it comes to prior restraints. However, an obscene publication forms an exception to this rule. In the words of J.E. Nowak and R.D. Rotunda, Constitutional Law 1148 (1991):

The Court has often stated that "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Obscenity, however, is one of a few areas of the law in which prior restraint has been upheld.

What is United States Case Law Doing in Israeli Law?

42. Freedom of expression and “public morality." Both these concepts are pleasing to us and we have found them to be good and proper. What shall we do if one pulls northward while its companion pulls southward, and we are caught in the middle, between the two? How should we determine the boundaries of the protected freedom of expression, and how far should we be willing to go in spreading the protection around it? Primarily, the question is not a “legal” question. The tools placed in our hands are too crude and bulky for us to fashion with them clear, distinct legal rules. The tests are general and vague and we would find it difficult to apply them to daily life. The extra-judicial elements in the material before us fill most of the vacuum, and the jurist finds himself roving in a field that is outside his natural province. How, therefore, shall we decide between the opposing views?

Lacking direction from the legislature, we jurists are required—as is our way—to draw analogies from other places, to study fundamental principles, which guide our lives and our judicial system, as well as to interpret life around us. I have said elsewhere that the judge is the “interpreter of life. See M. Cheshin, Meir Shamgar—A President of Judges; a Justice and a Human Being, 26 Mishpatim 203, 207 (1995-96). If that is so in general, then a fortiori is it so regarding a subject that raises fundamental social questions, as does this case.

43. My colleague the President, as well as I, quote from American jurisprudence, from which we seek to derive guidance. In particular, we have referred to the three-pronged theory, established in Miller [50], at 24, which instructs us, in the following manner:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Of course, we do not see ourselves bound by American rulings. However, in order to fertilize our country’s judicial field, we seek to acquire knowledge from others. As for myself, I must admit that this is not an easy path for me to follow.

A judicial system that is in force in country “X” is analogous to a branch that grows on the trees of life and knowledge in that country. The residents of that country will eat from the fruit of the tree and it is good for them for, after all, the tree grew in their garden and on their soil. In our case, however, since the tree did not grow in our garden and on our soil, how may we eat from its fruit without jeopardizing our health? The law is merely a reflection of social and political life. And if we look into the mirror of strangers, will we not see their faces instead of our own? Indeed, in going towards the stranger, we shall distance ourselves from the particular and the specific, and bring ourselves closer to the general and the universal. Where is that miraculous apparatus capable of separating the glue between the general and the particular—and how shall we separate those who cannot be separated? After all, the rules in that foreign country are made of a single clay; they did not prepare themselves for a “modular” separation of the elements that comprise them, so that some of them would go for export and some would remain for local consumption only.

Nevertheless, in so far as problem-solving judicial techniques are concerned, I do not see any obstacle to seeking assistance from foreign judicial methods. The same applies to judicial framework formulae, formulae that are free of substantive content. With regard to norms with substantive content, it would be relatively easy to find analogies in the areas of civil and criminal law. This is even the case in the area of commercial law, and is certainly so in the areas of international commerce. However, our concern here is with society’s delicate fabric, its lifestyles, world-view, public morality—substance that grows from the depths of the human soul and society. Can we draw from them without harming ourselves? We should look around us and know that we live in our own world while others live in theirs.

44. In terms of the present case, three factors distinguish between American law and us. First, freedom of expression has gained a formal and unique status in the United States Constitution. Freedom of expression dwells on the mountaintop, and all interests that seek to detract from it must themselves first reach that peak. Only those among them that succeed in attaining the summit will be able to strive against the Sovereign, freedom of expression. That is the point of departure under American law. This is also the reason for certain techniques adopted by the United States courts, such as the ruling that material which is obscene is fundamentally not included in the First Amendment to the Constitution and, in any event, is not granted the protection of freedom of expression. See Roth [49] at 1308-09 and Miller [50], at 2614-15. Needless to say, all of these judgments are integrally connected to the social views prevailing in the United States. Consequently we should be cautious not to import into our country principles, which have not been adapted to suit us, or our lifestyles. In Israel, unlike the United States, freedom of expression has not gained a formal supra-legal status. In any case, we would find it difficult to apply rules established in the United States, as if we did not know otherwise. Indeed, in our country, the place of freedom of expression has a place in the sanctuary, but it is not the Holy of Holies itself.

Second, the United States is composed of fifty States, and the law has recognized a certain expanse for each and every state in terms of defining obscene material. This is the second prong of the Miller [50] ruling. Thus, the law in the United States has recognized the difference between social life in its various States, and rejected an all-inclusive principle, which would apply to the entire country. This second part of the Miller [50] test gives clear expression to the fact that the subject of obscenity is derived from the heart of society, boasting a social dimension that varies from one society to another. Thus, for example, the various American states have broad powers to regulate nonverbal physical conduct in comparison to their authority to prevent the depiction or descriptions of that same behavior. See Miller [50], at 2616 n.8. To which of the states in the United States should we liken ourselves? Must we at all resemble an American state at all?

Third, in the United States, the decision regarding whether or not certain material is obscene rests with the jury, the same jury that is supposed to represent the society in which it lives. Indeed, while the jury must be guided by the legal tests established by the Court, the substantive decision is in its hands—as the representative of the people—not in the hands of the Court. Moreover, as we know, the jury does not give reasons for its ruling. The jury is also the body responsible for deciding the issues set out in Miller [50], i.e. a “division of labor” has been established between the jury and the Court. Is not the analogy to the matter at bar clear? We will provide judicial guidance to the Board, but the Board will decide what will be exhibited and what will not be exhibited to the general public.

Requiem for the Board?

45. We have dwelt on the inherent difficulty in rendering a decision on a matter such as the one before us, and we shall not repeat what we have already said. This difficulty increases when we consider the permissive nature of contemporary society, and our knowledge of the pornographic material that is incessantly disseminated around us. See supra, para. 9. Nevertheless, we cannot ignore the special arrangement established by the legislature in setting up the Board and entrusting it with the decision whether or not a film should be screened to the general public. I regard the “division of labor” between the Board and the Court as being of supreme importance. As I have already noted, this division of labor is similar to that in force in the United States: on the one hand, the Court and the State legislatures establish legal guidelines for disqualifying obscene, and, on the other hand, the jury determines and decides in the cases that arise. The jury is the people, and as we have remarked time and again, so is the Board. There have always been differences of opinion with regard to the subject of “pornography," and we are condemned to live with them in the future as well. However, since the Board was established, we must honor it and we cannot disregard its decisions as though they did not exist. Even if my opinion differs from the Board’s—and my opinion is indeed different, as I noted in para. 18 supra— the Board’s decision is the decisive one.

46. Whether the Board should continue to exist is a separate question. Aware of the problems connected with its existence, the law has more than once delved into the issue of whether the Board should be allowed to continue functioning. Commenting on this matter, Justice Berenson noted in Avidan [37], at 770:

Far be it from me to support censorship of any kind, other than that required for security reasons, public order, and perhaps for the purpose of safeguarding Israel’s foreign relations. Censors are not always sensitive to the zeitgeist, particularly with regard to the younger generation, struggling to rise up and take its rightful place in society and to express its discontents. Every cultural and artistic work, provided that it does not harm state security or turn public order on its head, encouraging the violent overthrow of the political regime, is worthy of being given a chance to prove itself. If it will find favor in the public’s eyes, it will flourish. If, on the other hand, it will displease, its destiny will in any event be to disappear in a flash and be relegated to the dustbin of history.

The judges, for their part, have always seen themselves as obliged to obey the legislature. In the words of Justice Berenson in Avidan [37], at 770-71:

The abolition of censorship on films or the narrowing of its sphere of operation are a matter for the legislature, not the Courts, which usually only interprets and implements its instructions, to decide. If I am not mistaken, the Minister of Education and Culture recently decided to recommend that censorship of plays be abolished. Perhaps in our permissive generation we should also think the same about films? However, as noted, this is a matter for the government and the Knesset to attend to. For the time being, the law is what it is, and the Board is the public body responsible for implementing it. Its opinion is therefore the decisive one.

In Noah Films Company [26], at 763, Justice Vitkon added:

We must bear in mind that whether we reject or support the institution of censorship—and it seems to me that it would be difficult to forego it completely—it is the arrangement that the legislature set out. Hence, we must not interfere with the Board’s decisions when the true reason underlying our interference is merely—conscious or unconscious—opposition to the institution of censorship per se. We must be careful not to confuse issues. Abolition of censorship is a matter for the legislature to attend to, if it sees fit to do so, and it is not our role to narrow its boundaries and empty it of all content.

In light of the Board’s unique composition, it seems to me that it is as it should be. We should also bear in mind that the Board does not count itself among the government authorities and that the majority of the Board’s members are not civil servants. The issue of the Board’s existence is a matter for the legislative body to address, and it is the legislative body that is supposed to express the public’s inner feelings. Until a change is made in the existing law, we judges should not force the Board to embrace norms that it does not accept. No matter what our personal opinion of the film under discussion; no matter what the opinion expressed by the art experts; the Board has voiced its opinion in a clear manner, and I, for my part, have not found a good reason not to honor its decision. The authority to censor films was granted to the Board in principle, and, in the absence of proven harm to recognized basic values, we shall honor this representative body’s decision.

This is the meaning of authority and this is the meaning of review of authority; this is the meaning of the separation of authorities and this is the meaning of respect for the members of the authorities. We do not refer to the respect, which we must have for the Board as an institution, when referring to a law, which sets the limits of the institution’s authority. The Court is entrusted with interpreting the law. If the Court’s interpretation of a statute is different from the interpretation given by the authoritative body, the honor of that body will not be impaired if the Court points to the law’s correct interpretation. See HCJ 73/85 Kach Faction v. The Speaker of the Knesset [44], at 163; HCJ 910/86 Ressler v. The Minister of Defense [45], at 490. The position in relation to the Board members is different. They were chosen for the job from the very beginning as representative public figures, persons who are supposed to give expression in their decision to the standards of public morality accepted by the general public. Overturning the Board’s decision violates the statute’s purpose and may even be interpreted as impairing the Board member’s honor. We can see this very clearly in the statements made by the members during Board meetings. For instance, in the meeting of September 11^th 1994, Professor M. Sharon noted:

Even if I will be the only one here of this mind, I will vote that the film be disallowed. I would like the Supreme Court to take the role of censor upon itself. If has already done so in the past, and it is best that we reach the moment of truth … we are not unaware of the Supreme Court’s decisions. We, however, employ tests of our own. Here, our test will be clear and straightforward, as we have sat in deliberations a number of times and our feeling for ‘near certainty’ perhaps differs from the Court’s.

And on July 11, 1994:

We act according to a certain standard, unrelated to one film review or another. We have viewed the film four times, and each time reached the same conclusion, in light of what we saw. We are not an artistic body or film critics—that is not our role. We are a public body, and we see this film as pornographic and for this reason seek to prevent it screening. If the High Court of Justice will see fit to permit it, then so be it. Let the Court then substitute itself for the Board.

In a similar vein were the words spoken by Mr. Y. Markovitz (at the same meeting):

With all due respect, if the High Court of Justice sees fit to substitute itself for the Board, then let it replace it.

Said Mr. Y. Gutman at the Board meeting held on August 8, 1994:

If we were to permit the screening of this film as is, we can, to my mind, allow each and every film. We will then deal merely with age limits and not with reviewing content.

And more, and more of these things were said.

47. My colleague, the President, feels that his decision, as he decided it, serves to play down the Board’s status, and its powers drift away almost like smoke. In order to placate the Board members my colleague therefore adds that his words should not be understood as though they were meant to render the Board totally superfluous. On the contrary, the Board retains very valuable functions. In the words of my colleague, supra para. 16:

This test does not obviate the need for the Board. It establishes the facts. It performs the assessment.

This food, which my colleague sets before the Board members, is but a meager portion; not only because these functions may be assigned to a clerk, but also when we consider the remainder of the President’s words, to the effect that the same assessment which is performed by the Board “is of a constitutional dimension” in that it is “harmful to freedom of expression." In other words, a Court will examine the Board’s “assessment” in depth, and in fact: a Court will replace the Board. For reasons, which we have already dwelt upon at length—perhaps at undue length—I find it difficult to agree with my colleague.

48. Ours is a pluralistic society, but even in pluralism, the place of paternalism is not lost. The Board is one expression of paternalism, and as long as this body exists, we are forbidden to dispossess its powers of real content. Had the Board disqualified film segments featuring close- ups of a person’s intestines spilling out, or a person whose eyes are being slowly gouged out, it seems to me that we would not have interfered in its decision—even though the film was of an “artistic nature." The Board members feel this way regarding the excerpts that they want to cut from the film, and I have not found any reason why we should interfere in their decision.

We will not bring salvation to the world whether we approve or overturn the Board’s decision. However, in the end, the matter that we must decide centers on appropriate social mores and public morality. These cannot be measured or weighed but lie at the heart of our existence. I do not know from whence comes our authority to teach the Board members what the standards of social mores and public morality are. The question is one of conscience, and I will not agree that my conscience is to be considered any purer than theirs. In this vein, it is appropriate to consider the remarks made by a committee set up in the United States to discuss the issue of pornography (The Attorney General’s Commission on Pornography), as they are quoted in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) [57], at n. 22:

The most important harms [of pornography—added by Justice Cheshin] must be seen in moral terms, and the act of moral condemnation of that which is immoral is not merely important but essential. From this perspective there are acts that need be seen not only as causes of immorality but as manifestations of it. Issues of human dignity and human decency, no less real for their lack of scientific measurability, are for many of us central to thinking about the question of harm. And when we think about harm in this way, there are acts that must be condemned not because the evils of the world will thereby be eliminated, but because conscience demands it.

CrimFH 1187/03

State of Israel

v

1.         Ophir Peretz

2.         Erez Ben-Baruch

3.         Yoav Mizrahi

The Supreme Court sitting as the Court of Criminal Appeals

[28 July 2005]

Before President A. Barak, Vice-President Emeritus E. Mazza,
Vice-President M. Cheshin, Justice Emeritus J. Türkel
and Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis

Further hearing of the judgment of the Supreme Court (Justices E. Mazza, D. Dorner, A. Procaccia) on 20 January 2003 in CrimA 7132/02 and CrimA 7418/02, in which the Supreme Court allowed the appeal of the first and second respondents against the sentence of the Beer-Sheba District Court (Vice-President Y. Pilpel and Justices N. Hendel, R. Yaffa-Katz) on 17 July 2002 and the appeal of the third respondent against the sentence of the Jerusalem District Court (Justices Y. Hecht, M. Ravid, Y. Tzaban) on 16 July 2002.

Facts: In two unrelated cases, the prosecution and the defence made a plea bargain in the trial court that was subsequently rejected by the trial court, and the respondents were given stricter sentences than the ones recommended to the court in the plea bargain. The respondents appealed against the strictness of the sentences. In the appeals, which were heard jointly, the state defended the sentences that were handed down by the trial courts, rather than the plea bargains that were originally made by the state. The appeals were allowed, but the court expressed different views on the question whether the state should defend, in an appeal, a plea bargain that was rejected by the trial court, or whether it should defend the sentence handed down by the trial court. The state therefore petitioned the Supreme Court to hold a further hearing to clarify the issue of how the prosecution should act in such cases. The petition to hold a further hearing was granted, and the matter was considered by an expanded panel of nine justices.

Held: As a rule, the prosecution should defend a plea bargain in the court of appeal, even when it was rejected by the trial court. In exceptional cases the prosecution should be allowed at the appeal stage to be released from its undertaking in the plea bargain, when considerations of the public interest override all the considerations that support the prosecution abiding by its undertaking in the plea bargain. In the opinion of Justice Grunis, in these exceptional cases the accused should be allowed to retract his guilty plea.

Petition denied.

Legislation cited:

Courts Law [Consolidated Version], 5744-1984, s. 30.

Criminal Procedure Law [Consolidated Version], 5742-1982, ss. 74, 83.

Public Defender’s Office Law, 5756-1995.

Rights of Victims of Crime Law, 5761-2001, s. 17.

Standard Contracts Law, 5743-1982.

Israeli Supreme Court cases cited:

[1]  CrimA 7132/02 Peretz v. State of Israel [2004] IsrSC 58(3) 481.

[2]  CrimA 1958/98 A v. State of Israel [2003] IsrSC 57(1) 577.

[3]  CrimA 8164/02 A v. State of Israel [2004] IsrSC 58(3) 577.

[4]  HCJ 218/85 Arbiv v. Tel-Aviv District Attorney’s Office [1986] IsrSC 40(2) 393.

[5]  CrimA 4722/92 Markovitz v. State of Israel [1993] IsrSC 47(2) 45.

[6]  CrimA 6675/95 Shiloah v. State of Israel [1996] IsrSC 50(2) 672.

[7]  CrimA 534/04 A v. State of Israel (not yet reported).

[8]  CrimA 1289/93 Levy v. State of Israel [1994] IsrSC 48(5) 158.

[9]  CrimA 532/71 Bahmotzky v. State of Israel [1972] IsrSC 26(2) 543.

[10] HCJ 844/86 Dotan v. Attorney-General [1987] IsrSC 41(3) 219.

[11] HCJ 311/60 Y. Miller Engineering (Agency and Import) Ltd v. Minister of Transport [1961] IsrSC 15(3) 1989; IsrSJ 4 55.

[12] HCJ 124/79 Tzoba v. Minister of Defence [1980] IsrSC 34(2) 752.

[13] HCJ 5319/97 Kogen v. Chief Military Prosecutor [1997] IsrSC 51(5) 67; [1997] IsrLR 499.

[14] CrimA 3694/00 Mordoff v. State of Israel (unreported).

[15] CrimA 4886/02 Glisko v. State of Israel [2003] IsrSC 57(1) 875.

[16] HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

[17] CrimA 326/99 Abud v. State of Israel (unreported).

[18] CrimA 1242/97 Greenberg v. State of Israel (unreported).

[19] HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [1980] IsrSC 34(3) 729.

[20] CA 6518/98 Hod Aviv Ltd v. Israel Land Administration [2001] IsrSC 55(4) 28.

[21] HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

[22] CA 3541/98 Di Veroli-Siani Engineering (1990) Ltd v. Israel Land Administration [2002] IsrSC 56(4) 145.

[23] CA 6328/97 Regev v. Ministry of Defence [2000] IsrSC 54(5) 506.

American cases cited:

[24] U.S. v. Mooney, 654 F. 2d 482 (1981).

[25] Santobello v. New York, 404 U.S. 257 (1971).

[26] Brooks v. United States, 708 F. 2d 1280 (1983).

[27] United States v. Fentress, 792 F. 2d 461 (1986).

[28] United States v. Harvey, 791 F. 2d 294 (1986).

[29] United States v. Massey, 997 F. 2d 823 (1993).

[30] United States v. Rivera, 357 F. 3d 290 (2004).

Canadian cases cited:

[31] R. v. Paquette 41 W.C.B. (2d) 5 (1998) 22.

[32] R. v. Rubenstein, 41 C.C.C. (3d) 91 (1987).

[33] R. v. Simoneau, 40 C.C.C. (2d) 307 (1978).

[34] A.G. of Canada v. Roy, 18 C.R.N.S 89 (1972)

For the appellant — E. Barzilai.

For the first and second respondents — M. Gilad.

For the third respondent — Z. Schlonsky.

JUDGMENT

Justice D. Beinisch

Is a plea bargain made by the prosecution in the trial court binding on the prosecution in the court of appeal even when the trial court rejects it? Is the prosecution entitled in its pleadings at the appeal stage to refrain from defending the plea bargain that it itself made in the trial court? If the prosecution is indeed entitled not to defend the plea bargain, in what circumstances may it do so? These are the fundamental questions that we must decide.

Factual background and sequence of the proceedings

1.   The petition to hold the further hearing before us was filed following the judgment of this court in two criminal appeals that were heard jointly (CrimA 7132/02 and CrimA 7418/02). We shall describe below the facts underlying these criminal appeals and the judgment that was given in them.

In Criminal Appeal 7132/02 Peretz v. State of Israel [1], two persons, the first and second respondents before us, were indicted on charges of rape while taking advantage of a state of unconsciousness and in the presence of another. In the indictment filed against the first and second respondents it was alleged that they committed sexual acts on a girl of sixteen years of age, when she was drunk, and they even filmed these acts of theirs. After the trial of the respondents began, but before the testimony of the complainant was heard, the prosecution and defence reached a plea bargain. Within the framework of the plea bargain, the facts set out in the indictment were amended and the offence of which the respondents were accused was changed from an offence of rape to an offence of committing indecent acts. In addition, an agreement was reached with regard to the sentence. The arrangement concerning the sentence was an arrangement that allowed the parties to argue with regard to a range of sentence, according to which the prosecution would argue for a maximum sentence and the defence would argue for a more lenient sentence, which was the smallest sentence that the prosecution agreed it could request. After the plea bargain was presented to the District Court, the respondents pleaded guilty to the offences attributed to them and were convicted on the basis of their guilty pleas. As had been agreed in the plea bargain, the prosecution asked the court to sentence each of the respondents to a sentence of eighteen months imprisonment, whereas counsel for the defence asked the court to give a sentence of only six months imprisonment, which would be served by means of community service. In support of the proposed arrangement, the District Court was presented with reports of the probation service which were, as the court defined them, positive in the main, and it was also presented with a statement from the prosecution that the arrangement was justified ‘inter alia in view of the attitude of the complainant who forgave the defendants and held no grudge against them and had no interest in a trial being held’ (p. 21 of the court record in the District Court).

Notwithstanding the position of the parties, the Beer-Sheba District Court (Vice-President Y. Pilpel and Justices N. Hendel, R. Yaffa-Katz) rejected the plea bargain. The District Court thought that the sentence that was proposed by the prosecution was too lenient in the circumstances of the case and that there was a basis, in view of the seriousness of the case, for departing significantly from what was proposed by the prosecution. The District Court had reservations about the way in which the prosecution relied on the position of the complainant, and after it considered the various factors — the seriousness of the acts and the harm to the public interest, on the one hand, and the positive circumstances of the respondents, the guilty plea that they made and the proceedings that were made unnecessary as a result, on the other — it sentenced each of the respondents to five years imprisonment, of which three and a half years were actually to be served and the rest would be a suspended sentence. Each of the respondents was also ordered to pay the complainant compensation in a sum of NIS 10,000.

2.   In Criminal Appeal 7418/02 Mizrahi v. State of Israel [1], the third respondent in the petition before us was charged with the rape of a girl who suffers from mild retardation and also with committing an act of sodomy on her. According to the indictment, on three separate occasions the third respondent had intercourse with the complainant and committed an act of sodomy on her, by telling her that he would marry her, when he knew that she was retarded and took advantage of this fact in order to obtain her consent to the acts. When the trial began, the parties informed the court that they had reached a plea bargain according to which the respondent would plead guilty to the facts in the indictment (after a small change was made to the description of the acts set out therein), and he would be convicted and sentenced to six months imprisonment in community service and a suspended sentence. It was also stated in the plea bargain that the respondent would be liable to compensate the complainant in an amount of NIS 5,000. After the plea bargain was presented to the court, counsel for both parties urged the court to accept it, and counsel for the prosecution also discussed the many reservations of the prosecution in that case in view of the circumstances in which the offence was committed and the difficulties in the evidence that confronted it.

In this case too, notwithstanding the positions of the parties, the plea bargain was rejected. It should be noted that the Jerusalem District Court (Justices Y. Hecht, M. Ravid, Y. Tzaban) was not unanimous in its decision. Justice Tzaban thought that the plea bargain should be respected, whereas Justices Hecht and Ravid though that the sentence proposed in the plea bargain was inconsistent with the seriousness of the acts and they therefore sentenced the respondent to two years imprisonment, of which one year would actually be served and the remainder would be a suspended sentence. The respondent was also ordered to pay compensation to the complainant in a sum of NIS 5,000.

3.   Appeals were filed in this court by the respondents against the two judgments of the District Courts in the cases described above and the appeals were heard together before Justices E. Mazza, D. Dorner and A. Procaccia. The two appeals were directed against the sentences and the main argument in them was that the District Courts in Beer-Sheba and Jerusalem had erred in rejecting the plea bargains and in imposing stricter sentences than the sentences that had been agreed in the plea bargains that had been made in each of the cases. Counsel for the respondents argued that according to the criteria laid down in case law, including CrimA 1958/98 A v. State of Israel [2], the plea bargains should have been accepted and the sentences should have been handed down in accordance with what was agreed in those plea bargains.

In their response to the appeals, the prosecution defended the sentences that were handed down in the two cases. The prosecution explained that after reconsidering the cases, the State Attorney’s Office had reached the conclusion that the sentences that had been agreed within the framework of the plea bargains, which were approved by the respective District Attorneys, were clearly inconsistent with the seriousness of the respondents’ acts in the two cases described above. With regard to the first case the prosecution explained what its reasons were for making the plea bargain in the District Court, but it argued that notwithstanding the fact that there were grounds for supporting the plea bargain, the discretion that guided it in making the plea bargain was erroneous and unbalanced. The prosecution argued that, after the judgment was given in the District Court, the State Attorney’s Office reconsidered the case and came to the conclusion that there had been no justification for reaching the aforesaid agreement with regard to the sentence. The prosecution’s argument with regard to the second case was similar. With regard to this case also, the prosecution presented its reasons for agreeing to the plea bargain in the trial court, but it explained that after examining the evidence a second time it found that the agreement to the sentence that was proposed within the framework of the plea bargain was inappropriate. The re-examination of the two cases by the State Attorney’s Office therefore led to a change in the state’s position: instead of defending the plea bargain to which the District Attorney’s Offices has agreed in the District Courts, the prosecution chose to defend the sentences that were handed down. It need not be said that counsel for the respondents attacked this change of position and according to them the change in the prosecution’s position harmed the expectation and reliance interest of the respondents.

4.   The prosecution’s new position was unacceptable to the justices of this court, and in the judgment which is the subject of this further hearing, the appeals filed in both cases were allowed. The three justices on the panel agreed that in the circumstances of the case there was no basis for departing from the sentences that had been agreed within the framework of the plea bargains and the respective District Courts ought to have adopted them. Therefore the sentences of the first and second respondents were reduced to eighteen months imprisonment, whereas the sentence of the third respondent was reduced to six months imprisonment that would be served in community service, all of which as agreed in the plea bargains.

But on the question that is the focus of this further hearing there was a dispute between the justices on the panel. Justice Dorner, who expressed the majority opinion, thought that the change in the position of the prosecution with regard to the plea bargain in the court of appeal was problematic and undesirable. As she said:

‘This position of the state before us, which apparently reflects different approaches between the District Attorneys and the State Attorney’s Office, is very problematic. This is because a defendant who agrees to a plea bargain and also adversely changes his position as a result by pleading guilty to the offences with which he is charged, is entitled to assume that the state, which agreed to the plea bargain, will defend it in every court. Therefore the state ought to determine rules for approving plea bargains that will prevent changes in its position as aforesaid’ (para. 5 of the judgment [1]).

Consequently, Justice Dorner was of the opinion that no weight should be attached to the state’s position in the appeal:

‘On the merits, in view of the fact that the appellants agreed to the plea bargains on the assumption that the state would defend them, the position of the state before us cannot affect the question whether in the circumstances of the cases there was a justification, according to the criteria laid down in case law, for not respecting the plea bargains’ (para. 6 of the judgment [1]).

Justice Mazza agreed with the opinion of Justice Dorner, but Justice Procaccia expressed reservations with regard to the aforesaid approach:

‘In my opinion, the question of when and in what circumstances the prosecution may refuse in the appeal to defend the plea bargain to which it was a party in the trial court should be considered separately and proper criteria should be determined. I would refrain from a firm determination that a defendant is always entitled to assume that the state, which agreed to the plea bargain, will defend it in all circumstances and in all courts, and that there are no circumstances in which it may, or even should, change its position at the appeal stage.’

Since a decision on this question was unnecessary for deciding the appeals, as the justices agreed on the question of the merits of the appeal, Justice Procaccia said that the question should be left undecided.

5.   As stated, on 4 February 2003 the state filed a petition to hold a further hearing with regard to the aforesaid judgment, under s. 30 of the Courts Law [Consolidated Version], 5744-1984. In its petition, the state gave details of the various opinions that were expressed in the judgment and argued that a further hearing should be held in order to clarify what is the extent of the state’s commitment in the court of appeal to a plea bargain that was rejected in the trial court.

Before the decision was made in the petition to hold a further hearing, on 17 March 2003 this court gave its judgment in CrimA 8164/02 A v. State of Israel [3]. In that judgment, the basic question that is the subject of this further hearing arose once again, and President Barak, with the agreement of Justices England and Türkel, presented in his opinion a different approach from the one that was expressed in the opinion of Justice Dorner in the judgment that is the subject of this further hearing:

‘In my opinion, in a plea bargain the prosecution undertakes to present its lenient position before the court that determines the sentence. As a rule, the prosecution should also honour plea bargains that it made in the court of appeal, but when the plea bargain that was brought before the trial court is examined by the court of appeal, the state prosecution may re-examine its position with regard thereto. At this stage it has a new factor to consider, namely the judgment of the trial court, which examined the plea bargain and passed the sentence. It should take into account this additional factor within the framework of the balance between all the considerations that it makes and that we have discussed (see para. 14 of this opinion). If the prosecution is of the opinion that the plea bargain was a proper one, and the court approved it, then it should defend the judgment of the court and the plea bargain in the court of appeal. If it thinks that the plea bargain was a proper one even though the court rejected it, it should defend the plea bargain in the court of appeal rather than defending the judgment of the court. However, if after a reconsideration it is of the opinion that the plea bargain was not a proper one, whereas the judgment of the court that rejected it is the proper view, it may defend the judgment of the court rather than the plea bargain. Against the background of the aforesaid analysis, the respondent was entitled, during the hearing before us, to choose to defend the judgment of the court, if it was of the opinion that the plea bargain that it made was defective to an extent that justifies a repudiation thereof notwithstanding the defendants’ reliance on it. And this is what it has done de facto’ (ibid. [3], at p. 587).

It would appear, therefore, that with regard to the same question this court has given two different opinions. The need to reconcile the approach expressed in the opinion of Justice Dorner with the approach of President Barak in CrimA 8164/02 A v. State of Israel [3] is the reason underlying the decision of Justice Cheshin on 8 May 2003 to hold a further hearing. In the words of Justice Cheshin:

‘It is difficult to reconcile the remarks made by Justice Dorner (with the agreement of Justice Mazza and with the reservation of Justice Procaccia) in Peretz v. State of Israel [1] (in paras. 5 and 6 of her opinion on 20 January 2003) with the ruling made by the court (per President Barak, with the agreement of Justices Türkel and Englard) in CrimA 8164/02 A v. State of Israel [3] (in a judgment on 17 March 2003). Therefore I order — as requested — the holding of a further hearing in Peretz v. State of Israel [1] before a panel of nine justices. The subject of the further hearing is: to what extent is the state bound by in the court of appeal by a plea bargain that it made in the trial court?’

Thus we see that in this further hearing we are required to instruct the prosecution as to how it should act in the court of appeal after the plea bargain to which the state was a party was rejected by the trial court. It should be noted that the unique aspect of the issue under consideration in this further hearing is that it is not the criminal trial that took place in the court that is the focus of our deliberations but the considerations of the prosecution and the manner in which it operates in the course of the criminal trial. The sequence of proceedings as described above is what has brought this issue before us, and therefore we are required to decide the questions that it raises.

The arguments of the parties and the scope of the dispute

The state’s position

6.   The state agrees that, as a rule, the prosecution should also defend in the court of appeal the plea bargains that it made in the trial court. The state also agrees that the prosecution ought to defend plea bargains in which there was a mistake that is not serious. However, the state asks us to decide that the prosecution has discretion to examine each case on its merits, and in appropriate cases it has the possibility of choosing not to defend the plea bargain in the court of appeal. In principle, the state is asking us to adopt the position of President Barak, according to which a sentence that departs from a plea bargain is a new circumstance that the prosecution may take into account within the framework of the factors that it considers when deciding its position in an appeal.

The logic of the rule that the prosecution should defend plea bargains lies, in the opinion of the state, in the importance and status of plea bargains and in the public interest that they will be upheld, as well as in the expectation and reliance interest that the accused has in the plea bargain. However, the state argues that this rule has exceptions. The exceptional cases are those where the court expresses criticism of the plea bargain and the arrangement is not accepted by it, or where there are new considerations that were not taken into account when the plea bargain was made. If in these exceptional circumstances the state reaches the conclusion, as a result of the criticism of the court or as a result of a reconsideration of the plea bargain, that a serious and significant mistake was made in its considerations, and that the plea bargain does not achieve the balance determined by this court in CrimA 1958/98 A v. State of Israel [2], it should admit this before the court of appeal and defend the sentence that departed from the plea bargain.

7.   The most obvious difficulty that is presented by the position of the state is, of course, the harm that will be caused to the accused as a result of the state repudiating the plea bargain in the court of appeal. In its arguments, the state does not ignore this aspect of its position, and its obligation to the accused, but it is of the opinion that the weight given to this aspect in the approach of Justice Dorner is too great. In the state’s opinion, the reliance interest is an importance consideration but it is not the only consideration, and it should be balanced against other important considerations. This balance may lead, in certain cases, to the conclusion that the prosecution ought not to support the plea bargain in the court of appeal. The state finds support for this position in the judgment given in HCJ 218/85 Arbiv v. Tel-Aviv District Attorney’s Office [4]. That case considered the question of whether the state could repudiate a plea bargain before it was implemented, i.e., before the accused made his guilty plea in the court. In that case Justice Barak discussed the manner in which a balance should be struck between the interests of the accused (the expectation interest and the reliance interest) and the other considerations that arise from the public interest, such as the credibility of the executive authority and the realization of the purposes of the criminal law. The state was of the opinion that the rule decided in Arbiv v. Tel-Aviv District Attorney’s Office [4] supported its position that, in cases where the public interest so required, the prosecution would be entitled to act in a manner that harmed the reliance interest of the accused.

The state further argues that the manner in which the prosecution conducts itself is well known, both from the way in which it acts openly in the courts and from the guidelines of the State Attorney’s Office that have been published. Therefore, even though in the state’s opinion it is theoretically possible to harm the reliance interest of the accused when the public interest so requires, in practice when the prosecution repudiates a plea bargain in an appeal, the reliance interest of the accused is not harmed since ab initio the accused knows that he is not assured of the prosecution’s support of the plea bargain at the appeal stage.

8.   With regard to the specific cases of the respondents, the state argues that its repudiation of the plea bargains that were made with them was justified as a result of a reconsideration of the evidence in each of the cases, and a reassessment of the relevant considerations. Admittedly, the state concedes that in the discussions that it held with the respondents and with their counsel they did not address the question of what the prosecution’s position would be in the court of appeal, but, as aforesaid, it argues that the prosecution’s manner of conducting itself in this matter has been published and is well known.

The position of the Public Defender’s Office

9.   The Public Defender’s Office represents the third respondent in the proceeding before us, and it presented a fundamental position on the question under discussion, unlike the specific position presented by defence counsel for the first and second respondents with regard to the sentences that they were given. From the detailed and reasoned response of the Public Defender’s Office to the arguments of the prosecution we see that it agrees with the argument that it is not proper to make a sweeping rule that binds the prosecution in the court of appeal to defend, in all circumstances, the plea bargain that it made in the trial court. From the response we see that the Public Defender’s Office recognizes the discretion given to the prosecution, and in its opinion there are indeed exceptional cases in which the prosecution will not be obliged in the court of appeal to defend the plea bargain that was presented in the trial court. The question that the Public Defender’s Office focused upon in its arguments is in what circumstances and under what conditions will the prosecution be entitled to repudiate a plea bargain that it made and to present a different position in the court of appeal.

In this matter, the Public Defender’s Office presents two main arguments. First, the Public Defender’s Office is of the opinion that giving notice to the accused with regard to its not being obliged to defend the plea bargain at the appeal stage is an essential precondition for the prosecution repudiating the arrangement. The prosecution argues that the notice to the defendant is required both by the existence of a general duty of fairness to the accused and also, specifically, by the State Attorney’s guidelines. According to the Public Defender’s Office, in the absence of such a notice the accused may expect that the prosecution will defend the plea bargain in the court of appeal too, and this expectation should not be disappointed. The Public Defender’s Office disagrees with the state’s arguments that the prosecution’s practice of reconsidering its position in an appeal with regard to plea bargains is a well known practice, and it also disagrees with the argument that the publication of the State Attorney’s guidelines is sufficient for giving notice to defendants with regard to this matter. According to the approach of the Public Defender’s Office, just as an accused is warned that the court is not obliged to accept the plea bargain, he should also be warned about the possibility that the prosecution may repudiate the plea bargain in the appeal.

10. The second argument of the Public Defender’s Office focuses on the way in which it interprets the rule made in Arbiv v. Tel-Aviv District Attorney’s Office [4]. According to the Public Defender’s Office, the rule in Arbiv v. Tel-Aviv District Attorney’s Office [4] addresses four different situations that are based on the existence or absence of two factual issues that are a ‘change of position’ and a ‘change of circumstances.’ According to the Public Defender’s Office, in a situation where the accused has not adversely changed his position but there has been a change in circumstances, the prosecution may repudiate the plea bargain. By contrast, in a situation where the accused has adversely changed his position and there has been no change of circumstances, the prosecution is not entitled to repudiate the plea bargain. In the other two intermediate situations (where there is both a change of position and a change of circumstances or where there is neither a change of position nor a change of circumstances), in the opinion of the Public Defender’s Office a balance should be made between the conflicting interests. According to the Public Defender’s Office, an accused who pleads guilty on the basis of a plea bargain adversely changes his position in an extreme, and usually an irreversible, manner. Therefore, the expectation and reliance of an accused on the plea bargain are of considerable weight. Notwithstanding, according to the Public Defender’s Office, a judgment of a court that rejects a plea bargain does not constitute, in itself, a ‘change of circumstances.’ The Public Defender’s Office argues that the prosecution may reconsider its position only if the judgment that rejected the plea bargain addresses, for example, a circumstance that was not considered at all or a circumstance that was considered in an manner that was totally unreasonable. If, on the other hand, the court rejected the plea bargain without addressing a new circumstance, then, so it claims, there is no ‘change of circumstances’ that justifies a reconsideration of the plea bargain by the prosecution. The Public Defender’s Office bases its arguments on the distinction found in Arbiv v. Tel-Aviv District Attorney’s Office [4] between a ‘change of circumstances’ and ‘a new way of thinking.’ Whereas a ‘new way of thinking’ does not, as a rule, justify a repudiation of the plea bargain by the prosecution, a change of circumstances can justify a repudiation of the plea bargain, as actually happened in Arbiv v. Tel-Aviv District Attorney’s Office [4].

With regard to the concrete circumstances before us, the Public Defender’s Office argues that in the present case the prosecution at most made an erroneous balancing in the trial court, and eventually the recognition that this balancing was erroneous led the prosecution to change its position in the appeal. According to the Public Defender’s Office, the reasons given by the state as a justification for its new position were known to the prosecution in the trial court, and the prosecution has not indicated any new reason that would justify the change in its position. Therefore, since the respondents adversely changed their position in an extreme manner, whereas in the other circumstances there has been no change whatsoever, apart from a change in the prosecutors, there is no justification in this case for a change in the position of the prosecution with regard to the plea bargain.

12. It should be stated right away that the interpretation given by the Public Defender’s Office to the judgment in Arbiv v. Tel-Aviv District Attorney’s Office [4] is far-reaching and restricts the significance of what is stated there. It is difficult to regard the sentencing process following a plea bargain as being made up of several defined and limited situations in a schematic way in such a way that each case falls into one of these. The various proceedings and the developments associated with them should be regarded as a continuous set of events, such that at every point on that continuum there is a basis for examining the proper balancing for that point. This is the outlook that was even presented in Arbiv v. Tel-Aviv District Attorney’s Office [4]:

‘… It is possible to point to a spectrum of possibilities, which creates various different situations that each have their own specific weight’ (ibid. [4], at p. 404).

And later on:

‘Indeed, at one end of the spectrum there are cases where the accused carried out his part in the plea bargain in full, whereas from the prosecution’s point of view there has been no change in circumstances… at the other end of the spectrum are the cases where the accused has not yet carried out his part of the agreement whereas from the viewpoint of the prosecution there have been material changes in the circumstances… between these two extremes are various different situations in which the different interests are in conflict’ (ibid. [4]).

If this is the case, we are not dealing with discrete situations but with a broad spectrum of cases that requires a balancing and weighing of the circumstances at every point.

Deliberation

Preamble

13. The problem that arises in this further hearing is not new, and it has engaged the enforcement authorities and has also come up in the courts for years. The first discussion of this issue can be found in CrimA 4722/92 Markovitz v. State of Israel [5]. In that case, two defendants reached a plea bargain with the prosecution, in which the prosecution agreed to propose to the court, when it presented its arguments on sentencing, that the defendants should not actually serve imprisonment behind bars but should only be sentenced to community service. The District Court in that case rejected the plea bargain and sentenced the defendants to actual prison sentences rather than community service. The defendants appealed the sentence to this court and in the judgment Justice Netanyahu said the following:

‘Now that the trial court has refused to approve the plea bargain, which is the subject of the appeals before us, the prosecution is not joining the appellants in supporting the plea bargain, as would have been expected. It opposes them and supports the judgment. But at the same time it argues that the plea bargain is reasonable and it also argues, here for the first time, something that was not argued before the District Court either by the prosecution or by counsel for the defence, that the consideration underlying the plea bargain was that the appellants were outside Israel.

I am unable to understand the position of the prosecution that speaks in contradictions — on the one hand it defends the plea bargain and on the other it defends the judgment. The plea bargain is reasonable, the prosecution claims, but so too is the judgment reasonable, since the offences are very serious and it is not appropriate that the sentence for them should be one of community service, as proposed in the plea bargain, since that presents less of a deterrent; in summary, the sentence is a light one and therefore the prosecution is taking the position of defending it’ (ibid. [5], at p. 53).

Justice Mazza also addressed the position of the prosecution in that case:

‘Finally, as required by the circumstances of this case, I would like to add that when the prosecution enters into a plea bargain, and realizes after the event that it erred in doing so (such as in a case where it discovers facts of whose existence it was not aware when it agreed to the plea bargain), it has the power to notify the accused and his defence counsel that it repudiates the plea bargain and put its position to the test (cf. Arbiv v. Tel-Aviv District Attorney’s Office [4]). But when it has acted in accordance with the plea bargain, and the accused appeals the sentence in which the court decided to reject the plea bargain as being unworthy, the prosecution is required to adopt a position before the court of appeal. Like my colleague Justice Netanyahu, I am of the opinion that in such a case the prosecution cannot speak in contradictions, defending the sentence and defending the plea bargain in the same breath, and it must choose one of these two courses. In other words, if the reasoning of the court persuaded it that its consent to the plea bargain was a mistaken one, it should admit its error to the court of appeal and defend the sentence that is the subject of the appeal; but if it still confident and certain that the plea bargain should have been approved by the court as is, it should support the defendant’s appeal’ (ibid. [5], at pp. 57-58).

See also in this regard the remarks of Justice Mazza in CrimA 6675/95 Shiloah v. State of Israel [6], at p. 682. Thus we see that the question concerning the manner in which the prosecution should decide their position in the appeal arose in the past, and the prosecution’s position in those proceedings was criticized by the court. Justice Mazza outlined in his remarks the two paths open to the prosecution — defending the plea bargain or defending the sentence that rejected it — and now the time has come to determine when the prosecution should follow one path and when it should follow the other.

Description of the problem

14. The typical sequence of events that lies at the heart of our deliberations can be described in the following schematic manner: at any stage, usually after the trial has begun, discussions are held between the prosecution on the one hand and the accused and his defence counsel on the other, and a plea bargain is formulated. Within the framework of this plea bargain, the parties agree that the accused will plead guilty to various charges that the prosecution attributes to him in the original or amended indictment and that the court will be asked to convict the accused on the basis of his guilty plea. The parties also agree to bring before the court a recommendation with regard to the sentence that shall be handed down to the accused (see CrimA 1958/98 A v. State of Israel [2], at p. 611). The recommendation with regard to the sentence incorporates, inter alia, a certain degree of leniency for the accused that is given to him in return for his pleading guilty (ibid. [2], at p. 589). In addition, the recommendation may be for a specific sentence or for an agreed range of sentences (ibid. [2], at p. 612). The undertaking of the prosecution within the framework of the plea bargain is to bring the recommendation concerning sentencing before the court that determines the sentence and to argue in favour of the court adopting the aforesaid recommendation. Notwithstanding, the prosecution is obliged to explain to the accused that the court itself is not bound by the plea bargain and it is not obliged to accept the prosecution’s recommendation.

After the parties have informed the court that an arrangement has been reached, the court has a duty to explain once again to the accused that the court is not bound by the plea bargain and that there is a possibility that it will hand down a different sentence from the one that has been agreed (ibid. [2], at p. 611). At the end of these proceedings, the accused pleads guilty in the court, and if the court is persuaded that the accused has confessed willingly, without reservation, and understands the significance of pleading guilty, it convicts him. After this, the court conducts the proceeding of hearing arguments with regard to sentencing. Within the framework of this proceeding, the parties state their reasons for adopting the plea bargain, and the court examines the plea bargain in accordance with the criteria laid down in case law (ibid. [2], at p. 612). If the plea bargain that is being proposed properly balances the specific public interest and the general public interest in upholding plea bargains on the one hand and the benefit that is given to the accused on the other, the court will accept the plea bargain and hand down a sentence in accordance with what is proposed in the plea bargain. However, if the court is of the opinion that the balance test is not satisfied, then the court will depart from the proposed arrangement and hand down a sentence at its discretion, while taking into account the fact that the accused confessed within the framework of a plea bargain, with all that this signifies (ibid. [2], at p. 612).

As can be seen, CrimA 1958/98 A v. State of Israel [2] decided the way in which the parties and the court should act with regard to the question of plea bargains. That judgment outlined the criteria according to which the courts should assess plea bargains, and in doing so we discussed the manner in which the prosecution should conduct itself when it makes and presents a plea bargain. Our deliberations in the present case are supplementary to the judgment in CrimA 1958/98 A v. State of Israel [2]. Our current deliberations concern the case in which the court rejected the plea bargain that was brought before it, and sentenced the accused to a stricter sentence that the sentence agreed in the plea bargain. If in such a case the accused appeals against the judgment, the prosecution will be required to decide its position with regard to the appeal. The manner in which the prosecution will formulate its position in the appeal and the considerations that it should take into account when doing so are the subject of this further hearing. It should be noted that the premise for our deliberations is the agreed assumption that it is not possible to determine a sweeping rule that the prosecution is always and in all circumstances obliged in the court of appeal to defend the plea bargain that it made in the trial court. Everyone agrees that the prosecution has discretion in the case of an appeal and the dispute between the parties concerns the manner in which this discretion should be exercised. In other words, the question is in which cases should the prosecution defend the plea bargain, in which cases should it repudiate it and defend the sentence that departs from the plea bargain, and what should be the considerations that guide it in formulating its position. One more introductory remark before we continue is this: our deliberations concern the manner in which the prosecution should determine its position in an appeal in the circumstances described above. We should remember that whatever this position is, and no matter how much weight we give to it, the sentence is ultimately the duty of the court alone, and the court may not shirk this duty. The court may take the position of the prosecution into account, and it should respect its position, but it is not obliged to accept it (see CrimA 534/04 A v. State of Israel [7], at paras. 14-15, and the references cited there).

The duty to give notice to the accused

15. Before we discuss the considerations that should guide the prosecution when deciding its position in the court of appeal, we should direct our attention to the stage in which the plea bargain is made and the manner in which the prosecution should act at that stage. This is because the main problem in our case is the defendant’s expectation that the prosecution will also defend the plea bargain in the court of appeal, and this expectation is created at the preliminary stage when the plea bargain is made. Therefore, a partial solution to the aforesaid problem can be found first and foremost in the manner in which the prosecution’s undertaking is defined in the plea bargain and in the manner in which this undertaking is made clear to the accused and to his counsel at the stage when the plea bargain is being made. It should be remembered that a plea bargain is an arrangement that is made between the accused and the prosecution — an arrangement that has contractual aspects (cf. Arbiv v. Tel-Aviv District Attorney’s Office [4], at pp. 400 et seq.; CrimA 1958/98 A v. State of Israel [2], at p. 615). Just as in every contract the parties to the contract define the undertakings that they are taking upon themselves within the framework of the contract, so the parties to the plea bargain should also define in the plea bargain the undertakings that they are taking upon themselves within its framework. The parties to the plea bargain should draft the plea bargain in such a way that makes the understandings between them as clear as possible, and this should include the undertakings that each party takes upon itself. This is because it is on the basis of these understandings that the parties to the plea bargain — and especially the accused — acquire their various expectations, just as every party to a contract acquires expectations on the basis of the consents reached in the contract. For this reason, as a rule, the prosecution should make clear to the accused, already when the plea bargain is made, all the limitations and rules that apply to it with regard to the implementation of the plea bargain. Inter alia, the prosecution should explain to the accused, whether directly or through his defence counsel, that should the plea bargain be rejected, and should an appeal be filed, the prosecution does not undertake to defend the plea bargain before the court of appeal, and it will be entitled, and, as will be clarified below, in some cases it will even be obliged to re-examine its position. The prosecution has the duty to make this limitation clear from the outset so that the accused can properly assess the risks and benefits of the plea bargain that he is making with the prosecution. By making clear to the accused, from the outset, what are the undertakings of the prosecution to him within the framework of the plea bargain, and by preventing him from relying mistakenly on it, one of the main difficulties in our case will be resolved, since the accused will know ab initio what he is ‘receiving’ within the framework of the plea bargain. It should be noted that giving a warning to the accused from the outset and the duty of the prosecution to make its limitations very clear derive also from the duty of the prosecution to act with all due fairness and good faith in carrying out its functions. It should also be pointed out that this outlook, that a warning is required ab initio, is also included in the guidelines of the State Attorney’s Office. These guidelines direct the prosecutor to make clear to the accused, when making the plea bargain, that he ‘cannot make any undertaking ab initio as to the position of the prosecution in the appeal, if the court hands down a stricter sentence that the one agreed in the plea bargain and an appeal is filed against it by the accused.’ The aforesaid position is also acceptable to the Public Defender’s Office as a desirable solution, as it said in its pleadings:

‘If the accused is told by the prosecutor in the trial court that there is a possibility that the prosecution will not defend the plea bargain in the court of appeal, the accused will know this, consider it before agreeing to the plea bargain, and know that he is taking a risk’ (para. 16 of the summations of the Public Defender’s Office).

It can therefore be seen that everyone agrees that, as a rule, the prosecution should make clear to the accused ab initio that all that it is undertaking in the plea bargain is to recommend a certain sentence to the court that is determining the sentence. It should be noted that this recommendation to the trial court is the heart of the prosecution’s undertaking in the plea bargain. The efforts of the prosecution to persuade the trial court to accept the plea bargain are the realization of the undertaking that the prosecution gave in the plea bargain, and the prosecution should carry out this undertaking that it gave in good faith and with diligence. Notwithstanding, the prosecution should clarify that its undertaking within the framework of the plea bargain does not also include a promise to defend the plea bargain in the court of appeal, if it is rejected by the trial court, and for the reasons set about above, the prosecution’s duty to warn the accused ab initio of its limitations is of great importance. Below we will address the question of the effect of a failure to give such a warning on the case of the accused and the prosecution’s position in the appeal, but before we do so we should consider the question that lies at the heart of this further hearing, which concerns the considerations that should guide the prosecution when it needs to determine its position at the appeal stage.

The relevant considerations for determining the prosecution’s position in the appeal with regard to a plea bargain that was rejected in the trial court

16. The principle that should guide the prosecution when it formulates its position in the court of appeal in the situation under discussion is that as a rule, for the reasons that we shall discuss below, it should also honour in the court of appeal the plea bargain that it made, and I should support the position that it adopted in the trial. Notwithstanding, as aforesaid, the prosecution cannot undertake ab initio when making the plea bargain to defend it in the court of appeal if it is rejected in the trial court. Let us therefore turn to examine the considerations that should be taken into account by the prosecution when it is formulating the position that it will present to the court of appeal and the various reasons for the possible positions. We shall first examine the reasons why the prosecution should defend the plea bargain and afterwards we shall examine the reasons that may justify a change in its position in the appeal. It should already be pointed out that the reasons that can justify a change of position in the appeal are the reasons for the rule that enjoins the prosecution not to undertake ab initio what its position will be in the appeal stage.

The reasons for supporting the plea bargain

17. As stated above, the prosecution is not entitled to give an unqualified undertaking ab initio, at the stage of making the plea bargain, to defend the plea bargain in the court of appeal if it is rejected by the trial court. It is therefore obvious that in the absence of such an undertaking on the part of the prosecution, the prosecution does not have a legal duty, from a contractual perspective, to defend the plea bargain. Notwithstanding, no one denies that as a rule the prosecution ought to defend the plea bargain that it made in the court of appeal too. Even though the prosecution is not obliged, in the limited contractual’ sense of the obligation — when it acted properly and in accordance with its guidelines — to defend the plea bargain in the court of appeal, as a rule it is not released from its commitment to the plea bargain and from its undertaking to the accused. The prosecution’s obligation is not based therefore on the contractual aspect of the plea bargain but on other public aspects in the plea bargain. Below we will discuss these aspects, which are the basis for the commitment of the prosecution to support the plea bargain during the proceedings in the court of appeal.

18. The first element that supports an obligation on the part of the prosecution to defend in the court of appeal a plea bargain that was rejected in the trial court is based on the relationship that is created between the prosecution and the accused. In this relationship, the prosecution takes upon itself several obligations to the accused. The concrete duty of the prosecution is to persuade and convince the court at the trial stage to accept the plea bargain. The prosecution also has a general duty of fairness to the accused, and this duty imposes on the prosecution a duty to take into account the expectation interest of the accused. For his part, the accused in the plea bargain waives his right to be tried in a criminal trial from beginning to end, with all that this implies. No one denies that when a plea bargain is made, the prosecution makes a representation to the accused that the plea bargain is acceptable to it. There is a substantial reason for this representation, since when the prosecution agrees to a plea bargain it is presumed to have considered it and to believe it to be balanced and proper. This conduct gives the accused an expectation that the prosecution will support the plea bargain that it took upon itself and will act to the best of its ability, within the framework of its limitations, to bring about the realization of the plea bargain. It should be remembered that the public prosecution service is one entity, whether it is represented by one of the District Attorneys or by the main office of the State Attorney. It is therefore to be expected that the prosecution will, as a rule, speak with one voice when giving expression to its policy on sentencing. Therefore when a plea bargain is made, every attorney who pleads in the court should be regarded as speaking on behalf of the general prosecution service. Admittedly, in the normal court of events, the prosecution does not undertake to defend the plea bargain in the court of appeal and therefore the accused does not have a protected reliance interest in law. Nonetheless, in view of the representation made by the prosecution to the accused, and in view of the substantial reason that underlies it, the prosecution is required to examine carefully whether there is a basis for changing its position at the appeal stage. The duty of fairness that the prosecution owes to the accused obliges it to examine the various considerations most thoroughly before it changes its position; among the considerations that it should consider, it should also give weight to the representation that it made to the accused with regard to its belief in the propriety of the plea bargain, the expectation that it gave the accused as a result, and the extent of the waiver that the accused made when making the plea bargain. Indeed, as we have explained above, the prosecution should inform the accused that it is not undertaking to act in order that the plea bargain will be accepted in the court of appeal if it is found to be unworthy by the trial court. Notwithstanding, and despite the warning given at the outset, the hope and expectation of the accused that the prosecution will continue to support the plea bargain that it made with him cannot be ignored, even if the plea bargain is rejected. The remarks made by Justice Cheshin with regard to the warning given to the accused before he pleads guilty in the court are pertinent in this regard:

‘… when he signs a plea bargain, an accused has reason to hope that the court will accept the request of the public prosecution and deal leniently with him, and this hope is deserving of some weight in itself. Indeed, the accused is warned several times that the court is not bound by the plea bargain: his defence counsel warns him; his friends warn him; the prosecution warns him; the court warns him. But no matter how many times he is warned, and no matter how much he is told that he is taking a risk, a defendant does not despair of finding mercy, and he is full of expectation and hope. In legal language we call this the reliance interest, and the accused hopes, expects and dreams. We cannot ignore this human factor, nor indeed shall we ignore it’ (CrimA 1289/93 Levy v. State of Israel [8], at p. 174).

Thus we see that just as the warning with regard to the court not being bound by the plea bargain only slightly reduces the expectation of the accused that the plea bargain will be honoured, so too, in our case, the warning given by the prosecution that it is not bound to defend the plea bargain in the court of appeal does not eliminate from the heart of the accused the hope that the plea bargain will receive the support of the prosecution at all stages of the proceedings. Even in a case where the plea bargain is rejected, and the accused files an appeal, it is reasonable to assume that he has an expectation that the prosecution will defend the plea bargain that was agreed. The hope and expectation of the accused in such a case are not unfounded and they should be given weight, even when they are not based on a reliance interest that is protected by law.

19. An additional element that supports the commitment of the prosecution to defend in the court of appeal a plea bargain that was rejected in the trial court lies in the public interest that the prosecution is responsible to protect. The relevant public interest in our case is the need to protect the institution of plea bargains, in view of the public benefit inherent in it, and the desire to prevent any harm to this institution. This court discussed many years ago the advantages inherent in the use of plea bargains, both for the accused and the public (see CrimA 532/71 Bahmotzky v. State of Israel [9], at p. 550). In CrimA 1958/98 A v. State of Israel [2] we confirmed these remarks and added there that:

‘The existence of plea bargains allows a broader application of law enforcement and this in itself has a deterrent effect, which may balance the effect of the leniency in sentence in the specific case. A plea bargain that is made in accordance with the rules and in accordance with proper considerations shortens the suffering of the accused and of potential defendants who are waiting for an indictment against them. The plea bargain allows the enforcement authorities to bring additional offenders to trial, and ensures sentencing at a time that is not too distant from the time of committing the offence. It saves the considerable resources that are invested in the management of the criminal trial, which is sometimes complex and prolonged, and which are burdensome both to the prosecution and to the accused, and it frees the court, which is overburdened, so that it can deal with other cases. From an ethical point of view, the plea bargain has the additional value that the offender accepts responsibility for his acts. In addition to all this, a plea bargain helps the victim of the offence, by taking into account his need for a rapid recuperation and by sparing him further harm as a result of his giving testimony’ (ibid. [2], at p. 607).

There is no doubt that the actual prohibition against the prosecution undertaking ab initio to defend the plea bargain in the court of appeal prima facie reduces the ‘value’ of the plea bargain. The aforesaid restriction that is imposed on the prosecution and the possibility that the prosecution will withdraw its support for the plea bargain are likely to lead to a consequence in which the number of cases that end with a plea bargain is reduced. Since this is the case, and in view of all of the advantages described above that benefit all the parties in the proceeding and the public as a whole, the prosecution is required to act with even greater care when it acts in a way that is likely to harm the effectiveness of the institution of plea bargains. The prosecution should therefore take into account, among its considerations, its duty to protect the effectiveness of the institution of plea bargains and to act from a viewpoint of a commitment to the plea bargain so that any harm to this institution is kept to an absolute minimum.

20. The third element on which the prosecution’s commitment to the plea bargain is based derives from within the prosecution itself. The prosecution is one of the organs of the state and it is subject to the scrutiny of the court. Notwithstanding, we are speaking of a professional body that has broad and independent discretion in exercising its authority. In its role as the authority responsible for conducting the prosecution in a specific case, the public prosecution service may, inter alia, appeal a decision of the court, and in doing so it expresses the independence of its discretion and its desire to change the decisions of the court, as they are reflected in the judgment that it is appealing. The same is true of plea bargains; when the prosecution, together with the accused and his defence counsel, acts in order to formulate a plea bargain, it is presumed to carry out its task in good faith, while taking into account the considerations that are relevant to the case. When a plea bargain is made, the public prosecution service, with its various branches, is presumed to believe — both in the trial court and in the court of appeal — that the plea bargain properly satisfies the balancing test provided in our case law. Therefore, the prosecution’s support of the plea bargain is a reflection of the prosecution’s confidence in its professional decision and of its belief that its discretion is proper and sound. This confidence and belief do not disappear when the court rejects the plea bargain and there is no need for the prosecution to be persuaded that it erred in making the plea bargain because of what is stated in the court’s sentence. It is certainly possible that the prosecution will stand by its original position in the belief that the plea bargain that it brought before the court properly satisfies the balancing test. Therefore if the prosecution is of the opinion that the plea bargain that it proposed is a proper one and serves the public interest, it is also obliged to present this position in the court of appeal, and it is only natural that the prosecution should seek to defend its original discretion.

In the aforesaid context, it should be noted that it is natural that in many cases, where there is a plea bargain and in the absence of any evidence being presented to the court, the parties — the prosecution and defence — will be more familiar with the details of the case that the court. We discussed this in CrimA 1958/98 A v. State of Israel [2]:

‘The arguments with regard to sentencing after a conviction within the framework of a plea bargain are, by their very nature, a short proceeding. As a rule, the court is not familiar with the evidence and does not even examine it, and naturally it cannot examine the facts presented to it by the parties, even if they explained to the court their reasons and even if it has full confidence in the prosecution and the propriety of its actions’ (ibid. [2], at p. 606).

(See also in this regard: R. v. Paquette [31]). Because of the aforesaid, among the various reasons for the court rejecting the plea bargain, the decision of the court may be a consequence of a defective presentation of all of the reasons that support the adopting of the plea bargain. As stated, these reasons are known to the parties and they have the duty to present as complete a picture as possible in order to persuade the court to adopt the plea bargain. Therefore, when the prosecution thinks that the presentation of the facts was defective, it will be obliged to remedy this deficiency by presenting the plea bargain more effectively in the court of appeal. In this regard, it should be stated that as a result of the circumstances described above, a paradoxical situation may arise in the cases of defendants where there is problem in the evidence or some other problem relating to their case, as a result of which the chances of convicting them without a plea bargain are relatively low. Prima facie these defendants have an opportunity of making plea bargains that appear excessively lenient, even for serious offences, but they are also those cases where they waived a real chance of being acquitted. Such apparently lenient plea bargains may seem to the court to be unbalanced and the result may be that the plea bargain is rejected in cases where it was most proper (see: R.E. Scott and W.J. Stuntz, ‘Plea Bargaining as Contract,’ 101 Yale L. J. (1992) 1909, at p. 1954; see also the comprehensive discussion of this matter in E. Harnon, ‘Plea Bargains in Israel — The Proper Division of Roles Between the Prosecution and the Court and the Status of the Victim,’ 27 Hebrew Univ. L. Rev. (Mishpatim) (1997) 543, at pp. 576-579). The desire to refrain from the occurrence of this undesirable outcome reemphasizes what was stated above with regard to the duty of the prosecution to present its reasons for the plea bargain to the court effectively so that the court can understand all of the considerations that led the prosecution to agree to the plea bargain, which appears to be unbalanced (notwithstanding, cf. in this regard the remarks of Justice Goldberg in Shiloah v. State of Israel [6], at pp. 678-679, who was of the opinion that the court when examining a plea bargain that is presented to it should not take into account the likelihood of the accused being convicted in a trial).

The prosecution’s commitment to the plea bargain is therefore based on the grounds that we have listed above. These are also the considerations why it is proper for the prosecution to defend the plea bargain that it made in the court of appeal, even if this plea bargain was rejected in the trial court. Now let us turn to examine the reasons that are capable of justifying a change in the position of the prosecution in an appeal.

The reasons that justify a change of position in the appeal

21. There are other reasons that oppose the reasons for the prosecution’s obligation to defend a plea bargain in the court of appeal. These derive from the other obligations of the prosecution. These reasons, of which we shall give details below, are the basis for the rule that the prosecution is not entitled to undertake ab initio to defend in the court of appeal a plea bargain that was rejected by the trial court. These reasons are also, as aforesaid, the other group of considerations that the prosecution must consider when it decides its position proper to the hearing in the court of appeal. As a rule, the reasons that can justify the prosecution’s decision not to support the plea bargain at the appeal stage are derived from the prosecution’s obligations to the public, from the relationship between the prosecution and the court and from the role of the prosecution in representing the public interest. Let us therefore turn to examine the aforesaid fundamental reasons.

22. As the authority responsible for representing the public interest, and as a part of its duty of faith to the public, the prosecution must conduct a continuous internal review of its decisions. The prosecution is especially required to conduct an internal review when a plea bargain that was made is rejected by the trial court. The first reason why the prosecution is liable to re-examine its position can be found, therefore, in the internal workings of the prosecution service.

When a sentence is handed down in defiance of a plea bargain, it amounts to an express or implied criticism of the plea bargain that was made and of the prosecution’s discretion. This criticism requires a reconsideration and re-examination of the plea bargain in the hierarchy of the internal workings of the prosecution (cf. HCJ 844/86 Dotan v. Attorney-General [10]). It should be noted that we have already said that the criticism by the court that handed down the sentence does not necessarily require a change in the prosecution’s position. When the prosecution acts in good faith when making a plea bargain, and has relevant and professional considerations, it should give the plea bargain great weight. Notwithstanding, in view of the criticism of the court, the prosecution must re-examine whether there was a material defect in its discretion when it made the plea bargain. In such a re-examination the prosecution may discover that, even though it considered the case in good faith and its reasons were relevant ones, it made a significant error when it gave too much weight to one consideration over another, or it did not give expression to a factor that was relevant to the sentence, and thereby its position did not satisfy the balancing formula.

When, according to the prosecution’s outlook, the criticism of the court that gave the sentence is justified and the competent echelon of the prosecution is persuaded that the prosecution erred in its considerations when making the plea bargain and the decision of the court properly reflects the correct balance, then for reasons that derive from the prosecution’s duty to the public and from the prosecution’s duty to scrutinize its own actions, the prosecution may notify the court of appeal that it erred in the plea bargain that it made, and that it withdraws its support for it. As a rule, it is desirable that a decision not to defend in an appeal a plea bargain that was made in the trial court should be made at a senior level of the hierarchy of the prosecution service, because of the responsibility that it has to the accused, the public and the court.

In summary, because it is an administrative authority, the public prosecution service must carry out a review of its own actions and it must re-examine itself when the circumstances change. For this reason, inter alia, the prosecution cannot give an undertaking in advance with regard to its position in the court of appeal, and it must re-examine the plea bargain that was rejected.

23. The second reason underlying the rule that prohibits the prosecution from committing itself ab initio to a position in an appeal can be found in the external sphere of the relationship between the prosecution and the court. As we said above, the prosecution is a public authority that acts professionally and independently. But when the court hands down its sentence, the prosecution cannot continue to act as if nothing has happened. The court has a ‘duty to respect’ the prosecution (in the words of Justice Cheshin in Levy v. State of Israel [8], at p. 174) and the prosecution should respect the decision of the court and take account of what it says. But this is not merely a question of respect. When it rejects a plea bargain, the court expresses its opinion that the discretion of the prosecution was mistaken. It is possible that a relevant consideration was ignored by the prosecution and it is possible that the prosecution erred in balancing the relevant considerations. Whatever the reason, if the court rejects the prosecution’s proposal when handing down the sentence, this determination means that, in its opinion, approving the plea bargain will cause more damage than benefit to the public interest, and the prosecution is not entitled to ignore such a finding by the court. The sentence of the court that rejected the plea bargain constitutes a new circumstance that the prosecution must take into account (see the opinion of Justice Barak in CrimA 8164/02 A v. State of Israel [3], at p. 587). Such a sentence will contain the reasons for rejecting the plea bargain and the prosecution cannot decide its position at the appeal stage without considering these reasons. The need to consider the reasons of the court does not derive from a mere ‘reassessment’ by the prosecution but from the fact that the court has expressed its opinion with regard to the plea bargain and this cannot be ignored. It is also for this reason the prosecution cannot give an undertaking ab initio with regard to its position at the appeal stage, and it must consider the sentence when it presents its position in the appeal. The rejection of the plea bargain and the reasoning of the court are therefore new circumstances that the prosecution must include among its considerations when it decides its position at the appeal stage, just as it is entitled to do when there are other relevant circumstances that were unknown to it when it decided upon its original position, which we shall discuss later.

How should the prosecution relate to a sentence that rejects a plea bargain? The answer to this question will vary, as aforesaid, from case to case in accordance with the specific circumstances. The re-examination following the sentence should, without doubt, be influenced by the reasoning in the sentence, the strength of the court’s criticism and the question whether the court that handed down the sentence had before it all of the facts that in the prosecution’s opinion were relevant for determining that the plea bargain reflects the proper balance between the factors that are relevant to the case. In view of the sentence that departed from the plea bargain, the prosecution must consider what was the defect in its discretion that was discussed by the court. Did the court think that the prosecution ignored relevant factors when making the plea bargain or did the court find that the prosecution did address the relevant factors but balanced them in a defective manner? What was the subject and scope of the criticism that the court made with regard to the prosecution’s discretion? To what degree did the court depart from the sentence that was proposed within the framework of the plea bargain? The answers to these questions will dictate the manner in which the prosecution ought to contend with the sentence that rejected the plea bargain and the manner in which it should decide its position in the appeal.

24. The third reason for the aforesaid rule derives from the broad question of the role of the prosecution in the public sphere. The role of the prosecution is to represent the public interest in criminal proceedings (see Arbiv v. Tel-Aviv District Attorney’s Office [4], at p. 403; CrimA 1958/98 A v. State of Israel [2], at p. 606; CrimA 534/04 A v. State of Israel [7], at para. 14). As stated, if the court found that the plea bargain that the prosecution made should be rejected, this means that, in its opinion, this plea bargain does not satisfy the balancing test and that the damage that will be caused to the public interest by adopting it is greater that the benefit that arises from it. In such a case, the prosecution cannot argue that the plea bargain should be adopted, if it does indeed harm the public interest, because then the prosecution will not be properly representing the public interest nor will it be discharging its executive duties as it should. It should be clarified that the purpose of the prosecution is not to obtain the most strict sentence possible for defendants, but to serve the public interest in the best possible manner. Therefore, if the prosecution is of the opinion that defending the plea bargain at the appeal stage will serve the public interest better, this, then, is the path it should choose; by contrast, if the prosecution is persuaded that the plea bargain does not serve the public interest, and that the sentence handed down by the court that rejected the plea bargain serves the public interest better, then the prosecution has the duty to defend the sentence. As stated, if the harm to the public interest that is caused by the plea bargain does not satisfy the balancing test, the prosecution will be liable to balance this against the harm suffered by the public interest as a result of its repudiating the plea bargain, with all that this implies with regard to the specific case and with regard to the general system of balancing that we discussed above.

25. In concluding our discussion of the main reasons that may justify a change in the prosecution’s position before the court of appeal, we should mention that apart from the sentence that departs from the plea bargain, there will only be a justification for the prosecution to change its position in exceptional and extraordinary cases. This will happen if new factors arise at the appeal stage and they are relevant to the sentence that should be handed down to the accused, or if the prosecution becomes aware of facts that it did not know when it made the plea bargain, and these could not have been discovered at that time. In such circumstances, the prosecution will be entitled, and sometimes even obliged, to reconsider its position, subject to the restrictions required by the late stage of the proceedings and subject to the weight of the waiver of rights made by the accused. It should be noted that in order to justify a change in the position of the prosecution as a result of the occurrence or discovery of new circumstances, these circumstances must be significant and of great weight (cf. Arbiv v. Tel-Aviv District Attorney’s Office [4], at p. 404).

Interim summary — the prosecution’s position

26. In our deliberations hitherto, we have discussed the reasons for the rule that states that the prosecution may not give an undertaking ab initio with regard to its position at the appeal stage. We also discussed all the considerations that the prosecution should take into account when it is about to decide its position in the appeal. It is therefore possible to summarize by saying that the prosecution’s margin of discretion in deciding not to defend in the court of appeal the plea bargain that it made is relatively limited and requires special circumstances. This path is not followed on a daily basis. The professionalism of the prosecution, the proper working relationship between the prosecution and the defence counsel, the expectations of the accused with regard to the prosecution’s position with regard to the plea bargain and the need to encourage plea bargains all should lead to the result that the prosecution does not hurry into a repudiation of its original position, even if there was a defect of some kind in its thinking. In the course of its re-examination of the case, the prosecution should place on one pan of the scales the criticism of the court that departed from the plea bargain and the public interest in respecting a sentence that has been handed down, and on the other pan it should place the specific circumstances relevant to the plea bargain that was made, the extent of the concession made by the accused so that the plea bargain would be honoured and the public interest in encouraging plea bargains. In other words, the prosecution should made a re-examination of the balancing formula at the appeal stage, in view of all of the factors that we discussed above. As a rule, therefore, the prosecution will change its position in a hearing before the court of appeal only if it is persuaded that there are reasons of great weight that justify this.

Comparative law

27. As we said in CrimA 1958/98 A v. State of Israel [2], it is difficult, in cases concerning plea bargains, to derive analogies from comparative law, because the attitude to plea bargains is deeply rooted in the nature of the legal system and in the role of the prosecution in the sentencing proceeding. The various characteristics of each legal system create a different system of plea bargains and each system adopts different solutions to the problems that arise when considering them (see CrimA 1958/98 A v. State of Israel [2], at pp. 587-588). Notwithstanding, the question of the prosecution’s commitment to the plea bargain has also arisen in other legal systems that are similar to our legal system, and below we shall consider the answer that has been given to this question in the Canadian legal system.

Our approach to the institution of plea bargains has many similarities to the fundamental approach of Canadian law in this regard (see CrimA 1958/98 A v. State of Israel [2], at p. 617). In CrimA 1958/98 A v. State of Israel [2], we mentioned the Canadian case of R. v. Rubenstein [32], which is considered a leading decision on the issue of plea bargains in Canada, and which presents a very similar approach to our approach with regard to the issue of plea bargains. The question under consideration in this further hearing before us arose in Canada in R. v. Simoneau [33]. In that case, an agreement was made between the prosecution and the defence counsel with regard to the sentence that would be recommended to the court (two years less a day) but the court rejected this joint recommendation and sentenced the accused to three and a half years imprisonment. The accused appealed, and in the appeal the prosecution chose to defend the sentence and not the position that it presented in the trial court. It need not be said that the defence counsel for the accused argued against the change in the prosecution’s position. The court addressed this matter in its judgment and held:

‘In exercising its appellate function, a Court of Appeal will not, in all cases, necessarily hold the Crown to a position taken at the trial. It will certainly consider the earlier stance of the Crown to be an important factor to be taken into account. But whether the Crown ought to be bound will depend on the circumstances of the case.

In the case at bar, Crown counsel at the trial concluded that there were good reasons for joining in a recommendation of a sentence of two years less one day. There are arguable grounds for coming to that conclusion. I do not criticize counsel for his decision although I do not agree with it. But if the Attorney-General on further consideration has decided that the trial Judge's sentence was an appropriate one, I would not insist that he be precluded from letting the Court know of that changed view’ (ibid. [33], at pp. 22-23).

It can be seen that the court laid down a rule in R. v. Simoneau [33] that is similar to the rule decided in our case, whereby the prosecution, in appropriate circumstances, is not committed at the appeal stage to the position that it presented in the trial court. If after a sentence is handed down which departs from the plea bargain, the prosecution is of the opinion that the sentence is correct, the prosecution may present this revised position to the court of appeal. In the judgment given in A.G. of Canada v. Roy [34], which also concerned the position of the prosecution in an appeal (although in a more problematic situation, where the prosecution was the appellant), the court said that, as a rule, the prosecution should not repudiate in an appeal its previous position, but in certain circumstances and for serious reasons such a change in position is required:

‘The Crown, like any other litigant, ought not to be heard to repudiate before an appellate court the position taken by its counsel in the trial court, except for the gravest possible reasons. Such reasons might be where the sentence was an illegal one, or where the Crown can demonstrate that its counsel had in some way been misled, or finally, where it can be shown that the public interest in the orderly administration of justice is outweighed by the gravity of the crime and the gross insufficiency of the sentence.’

According to the judgment in A.G. of Canada v. Roy [34], there must be very serious reasons for justifying a repudiation of its position in the trial court by the prosecution, and such reasons exist mainly in three situations: where the sentence handed down was unlawful, where counsel for the prosecution was misled and where the orderly administration of justice is outweighed by the lack of balance between the offence committed and its seriousness and the sentence that was agreed. In such cases, the public interest outweighs the duty not to repudiate the plea bargain that was made with the accused. This rule was also adopted in the Law Reform Commission of Canada, Plea Discussions and Agreements (Ottawa, Working Paper 60, 1989), at pp. 33-34, and the guidelines of the Canadian prosecution service also direct prosecutors to act in accordance with what is stated there. It should also be stated that one of the principles discussed by the Canadian prosecution service[1] is the principle of fairness, and according to the aforesaid guidelines the prosecution is obliged, as a part of the duty of fairness that applies to it, to honour the plea bargains that it made. From the guidelines it can be seen that the prosecution can indeed change its position in an appeal and even appeal the sentence while departing from the plea bargain, but this is only if there are very exceptional circumstances, and in any case such a change in approach must be approved by the highest echelons of the prosecution. It can therefore be seen that in Canada there is, in principle, a similar rule to the position that we have presented, according to which the prosecution is not prevented from repudiating, in the court of appeal, a plea bargain that it made in the trial court, but its ability to do this is limited and restricted to exceptional cases where the original position that the prosecution presented seriously conflicts with the public interest.

The manner in which the prosecution should present its position in an appeal

28. We have discussed the various considerations that the prosecution should take into account when it decides its position before the court of appeal and the reasons why it should not commit itself ab initio to defending the plea bargain also at the appeal stage. The conclusion that arises from these considerations is, therefore, that if the prosecution is of the opinion that the plea bargain that it made satisfies the balancing test and that it ought to defend it, then it should present its arguments to the court of appeal and contend with the criticism that was made with regard to the plea bargain in the sentence handed down in the trial court. But if the prosecution is of the opinion that the reasons for repudiating the plea bargain are of greater weight that the reasons for defending it, then the prosecution is entitled, and in special and exceptional cases is obliged, to abandon the plea bargain and present its revised position before the court of appeal. First, the prosecution should explain, in such a case, what were the reasons that led it to make the plea bargain in the trial court. This explanation is required because when it examined the prosecution’s position, the court, amount its other considerations, exercises judicial review of the prosecution’s actions. The public prosecution service should satisfy the court that even if it is repudiating the position that it presented in the plea bargain in the trial court, the plea bargain was made as a result of an error in good faith, and there was no serious flaw in its considerations that arose from an irrelevant consideration, an improper proceeding or an undesirable process that go to the heart of its discretion. It is self-evident that if it transpires that a serious flaw of the aforesaid kind is revealed, there is no doubt that the prosecution should not defend the plea bargain but should repudiate it (see, in this regard, the deliberations in CrimA 1958/98 A v. State of Israel [2], at p. 610). After this, the prosecution should give notice of its position in the appeal and of the considerations that guided it in reaching this position. The prosecution should explain and give reasons for its position, whether it stands by the plea bargain or whether it repudiates it, and it should show how the general principles that we discussed were implemented in the circumstances of the specific case (for similar requirements that are expected of the prosecution when it wishes to change a previous position, see U.S. v. Mooney, 654 F. 2d 482 (1981), at p. 487).

We should further point out that, in the judgment given in CrimA 8164/02 A v. State of Israel [3], President Barak discussed the two alternatives available to the prosecution: defending the plea bargain or defending the sentence of the trial court. But in practice these are not the only two possibilities. The prosecution may, as a result of the re-examination that it made, present an intermediate position before the court of appeal that is different from both the plea bargain and the sentence that rejected it. The prosecution will be entitled to argue that, admittedly, it was a mistake in its opinion to have supported the plea bargain, but, on the other hand, the sentence that was handed down and that departed from the agreed penalty in the plea bargain is also unacceptable to it because of the extent to which it departs from the plea bargain. The prosecution can, therefore, present a third intermediate option, if it is of the opinion that such an option will balance the various considerations and interests in the best possible way. It is not superfluous to point out that before the hearing of the appeal, the prosecution and the accused may, if it is agreed between them that the sentence that departed from the plea bargain cannot stand, reach a kind of new plea bargain that will be presented to the court of appeal. This will not be a plea bargain in the normal sense, since the accused has already pleaded guilty in the trial court and the accused has been convicted as a result, but it will be an arrangement within which framework the two parties will present a joint recommendation with regard to the appropriate sentence in the circumstances of the case, after the original plea bargain was rejected by the trial court. The court of appeal should, in such a case, consider the new arrangement in accordance with the guidelines that were laid down in CrimA 1958/98 A v. State of Israel [2], while taking into account the special factors that we discussed in our deliberations above.

The significance of the absence of an appropriate warning to the accused

29. At the beginning of our remarks, we discussed the duty of the prosecution to make clear to the accused, already at the stage of making the plea bargain, that it is not giving an undertaking to defend the plea bargain in the event that the court will decide to reject the plea bargain and hand down a stricter sentence and the accused appeals the sentence. The advance warning is intended to prevent the accused developing a mistaken reliance, and it is also intended to allow the accused to plan his actions on the basis of all of the relevant information. This leads to the question of what is the law in a case where the prosecution did not carry out its duty of notifying the accused ab initio that it was not undertaking to defend the plea bargain in the court of appeal. Let us now turn to examine this question.

30. The consequence that follows from a failure to warn the accused, when the plea bargain was made, of the fact that the prosecution is not undertaking to defend the plea bargain in the court of appeal if it is rejected by the trial court requires a specific examination in each case on its merits and in accordance with all the circumstances of the case. No one denies that if the accused is warned when the plea bargain is made and is told expressly that if the court that determines the sentence does not accept the plea bargain, the prosecution will reconsider its position in the appeal, the accused does not have, nor can he have, a claim of reliance. This is also the case where the accused knew ab initio of the restriction that binds the prosecution and that the prosecution is unable to give an undertaking ab initio to defend the plea bargain in an appeal, even in the absence of an express warning to this effect. In such cases, the plea bargain that is made cannot oblige the prosecution to stand by its original position. Regrettably, however, the everyday reality of making plea bargains is more complex. Notwithstanding the guidelines of the State Attorney’s Office, in many cases the plea bargains are not written and prepared in the required format, because of the constraints and pressures surrounding the circumstances of their making, and the accused is not warned ab initio of the fact that the prosecution does not undertake to defend the plea bargain in the court of appeal. It need not be said that in every case the plea bargain should be agreed between the prosecution and the accused, usually through his defence counsel, and in every case the significance, consequences and risks of the plea bargain, including at the appeal stage, should be made very clear to the accused, in express terms. The duty to clarify the details and significance of the agreement rests with counsel for the prosecution and naturally also with counsel for the defence. The question that we are now considering is what is the rule that ought to be adopted with regard to circumstances in which no express warning was given by the prosecution with regard to the possibility that it might repudiate its position if an appeal is filed after the plea bargain is rejected.

31. The answer to this question is based on the approach that a plea bargain, like any contract of an administrative authority, is subject to the rule that the authority is entitled to be released from the contract that it made for reasons of public interest, and as required by the authority’s duty to exercise its executive powers. We have already discussed (at para. 17 supra) that the prosecution’s commitment in the court of appeal to a plea bargain that was rejected in the trial court does not arise from the contractual aspect of the plea bargain, since, as a rule, the prosecution is not entitled to give an undertaking to defend the plea bargain in the court of appeal, and the plea bargain is implemented when the arguments on sentencing are made in the trial court. Therefore, if the plea bargain is made properly, there is no contractual relationship between the prosecution and the accused at the time of the hearing in the court of appeal. But if no warning is given ab initio to the accused with regard to the limited scope of the plea bargain, the accused may develop an expectation that the plea bargain will also apply after the sentence is handed down in the trial court, and this cannot be ignored,. It is clear that this expectation, in itself, is incapable of creating a contractual relationship where such a relationship does not exist. But even if we accept the approach of the Public Defender’s Office that, if a warning is not given ab initio, a contractual relationship continues to exist between the accused and the prosecution, and that in such a case the prosecution is also obliged to defend the plea bargain in the appeal, then the prosecution will have the right to be released from this relationship by virtue of the general power given to executive authorities to be released from contracts that they made for reasons of the public interest and as required by the duty of carrying out their executive powers.

The power of the authority to be released from a contract that it made was recognized by this court long ago in HCJ 311/60 Y. Miller Engineering (Agency and Import) Ltd v. Minister of Transport [11]; see G. Shalev, Contracts and Tenders of the Public Authority (2000), at pp. 67-75. Since then, this case law ruling, which is known as the ‘release rule,’ has been recognized widely in our case law (see, for example, HCJ 124/79 Tzoba v. Minister of Defence [12], at p. 754; HCJ 5319/97 Kogen v. Chief Military Prosecutor [13], at pp. 67, 78-79 {___, ___-___}). In Arbiv v. Tel-Aviv District Attorney’s Office [4], Justice Barak also applied the ‘release rule’ in the case of plea bargains (ibid. [4], at p. 400). The power of the prosecution to be released from the plea bargain derives from the very fact that the prosecution, as an administrative authority, is a party to the plea bargain. A failure to give the warning does not rule out this possibility; at most, it restricts the extent to which it may be used. Even if we say, therefore, that if a warning is not given ab initio there is a contractual relationship between the accused and the prosecution with regard to the position that the prosecution will adopt in an appeal, then the prosecution has the power to be released from this plea bargain if there is an overriding public interest (for the opinion that restricts the power of the prosecution to be released from the plea bargain in an appeal, see O. Gazal, ‘The Prosecution’s Position in an Appeal against the Rejection of a Plea Bargain,’ 1 Din uDevarim (2005) 507, at pp. 527-529).

It need not be said that the prosecution should use its power to be released from the plea bargain in good faith, reasonably and with a view to the special circumstances that accompany this release. A failure to give a warning to the accused is a significant consideration that the prosecution should take into account in addition to all of its other considerations, but it is not a circumstance that will totally deprive it of the ability not to defend the plea bargain that was rejected. It should be emphasized that in the stage after the sentence has been handed down in the trial court and the plea bargain has been rejected, the natural expectation of the accused that the prosecution will defend the plea bargain with him is weakened. By contrast, the duty of the prosecution to the public and to the court that found that the plea bargain was unjustified and that it did not satisfy the ‘balancing approach’ is strengthened. In the new balance that the prosecution is liable to make, it must address the question of what was understood within the framework of the contacts with the accused or his defence counsel as a part of the plea bargain. If, from an examination of all the facts and circumstances that surrounded the making of the plea bargain, it appears that no understanding was reached between the prosecution and the defence counsel that the prosecution would defend the plea bargain to the end, including at the appeal stage (and such an understanding is an unlikely scenario in view of the stated policy of the prosecution and its duty to give a warning), and if the accused did indeed understand the ordinary meaning of the undertaking in the plea bargain and the status and role of the court that is sentencing him, then in appropriate cases, as we have explained at length in our deliberations above, the prosecution will be entitled, and possibly even obliged, to express reservations with regard to the plea bargain that it made and to present new arguments with regard to sentencing in the court of appeal, even if it did not give a warning.

Thus we see that a failure to warn the accused of the possibility that the prosecution will repudiate the plea bargain at the appeal stage is a significant defect and the prosecution will be liable to consider to what extent it violates its duty of fairness to the accused in the specific circumstances. In appropriate circumstances the prosecution is entitled to refrain from defending the plea bargain even in the absence of a warning, and this is also an aspect of its power to be released from contracts that it made for reasons of the public interest. In any case, the circumstance of not giving a warning to the accused will be added to the reasons that support defending the plea bargain, and will give them considerable extra weight, even though, as aforesaid, this circumstance on its own cannot decide the matter.

32. It is interesting in this regard to turn to the relevant law in the United States, which contains a certain approach that the Public Defender’s Office cited in support of its arguments. We discussed the great difference between plea bargains as practised in out legal system and plea bargains as practised in the legal system of the United States in our opinion in CrimA 1958/98 A v. State of Israel [2], at pp. 614-616, 619-620. This difference makes it difficult to ‘import’ case law from the American legal system with regard to plea bargains, and in this regard see also our remarks in para. 27 supra. Notwithstanding, let us briefly consider the various approaches that exist in the American legal system.

In the United States it was customary, following the decision of the United States Supreme Court in Santobello v. New York [25], to examine plea bargains only within an ordinary contractual framework (see Brooks v. United States [26], where it was said that ‘A plea bargain is, in law, just another contract’). As a part of this approach, the American courts held that the prosecution will be obliged to act in one way or another only if it expressly undertook to do so within the framework of the plea bargain. It was also held that plea bargains should be interpreted with ordinary contractual tools. Therefore, in cases where the prosecution made a plea bargain in the trial court and the plea bargain said nothing on the subject of the proceedings after sentencing, the prosecution regarded itself as free to argue against the plea bargain in the aforesaid later proceedings. The courts approved the change in the prosecution’s position since they thought that in the absence of an express undertaking on the part of the prosecution to support the plea bargain even in later proceedings, there was no basis for imposing such an obligation on it (see United States v. Fentress [27], at p. 464: ‘While the government must be held to the promises it made, it will not be bound to those it did not make’). This approach establishes the liability of the prosecution to the accused in proceedings after the sentence on a limited contractual basis of the terms stipulated between the parties.

Alongside this approach, there arose a broader approach in the American legal system, and this extends the scope of the prosecution’s liability to the accused and restricts its freedom of operation to repudiate plea bargains that it made, because of fundamental considerations that fall outside the contractual framework. Echoes of this approach, which is expressed, inter alia, in an article that the Public Defender’s Office attached to its closing arguments (D.F. Kaplan, ‘Where Promises End: Prosecutional Adherence to Sentence Recommendation Commitments in Plea Bargains,’ 52 U. Chi. L. Rev. (1985) 751) can be found in the judgment given in United States v. Harvey [28]. In that case, the Federal Court of Appeals for the Fourth Circuit discussed how, in examining plea bargains, additional considerations that are relevant to the issue of plea bargains should be taken into account, even if they are not contractual ones. Among these considerations, the court mentioned, inter alia, the constitutional rights of the accused, the interest of maintaining public confidence in the government and the interest in the effectiveness of the law enforcement system. The court also said in United States v. Harvey [28] that because of these and other considerations, the prosecution ought to act in order to draft plea bargains in the best and clearest way possible, and that where there is a certain lack of clarity in the plea bargain, the responsibility for this rests with the prosecution. In later judgments, it was held that in a case of uncertainty and ambiguity in a plea bargain, it is possible to use the doctrine of ‘interpretation against the drafter’ in order to interpret the plea bargain (see, for example, United States v. Massey [29]; United States v. Rivera [30]). This approach has led some American courts to interpret plea bargains by means of contractual doctrines that severely curtail the discretion of the prosecution at the appeal stage. In our legal system there is no basis for adopting such strict rules. This is because the prosecution is a professional body that represents the public interest in the law enforcement process, and in our legal system it has broad discretion with regard to the matter of bringing persons to trial and in determining the sentencing policy; it is also because it is possible to examine the scope of the violation of the defendant’s rights and his reliance interest and to give this the appropriate weight in the circumstances of each case. Therefore, there is a basis for allowing the prosecution discretion to formulate its position in each case in accordance with its circumstances and in accordance with the criteria that we have outlined above.

Examining the sentence in an appeal — the considerations of the court

33. Up to this point, we have discussed a wide variety of issues, all of which concern the factors that the prosecution should take into account when deciding its position in the appeal. We cannot end our deliberations without addressing in brief the considerations of the court of appeal when an appeal is brought before it by a defendant with regard to a sentence in which the trial court handed down a stricter sentence than the one agreed by the parties in the plea bargain.

According to the basic principle in our legal system, the court of appeal is also not bound, of course, by the plea bargain or by the prosecution’s sentencing recommendation. In our legal system, the court cannot be exempted from its responsibility for sentencing and it must determine independently the proper sentence in the circumstances of the case. This was discussed by Justice Cheshin in Levy v. State of Israel [8]:

‘… The authority to hand down sentences to persons who have been found guilty in their trial is entrusted to the courts — to them and to no other. With this authority comes responsibility, for it is well known that there is no authority without responsibility, just as there is no responsibility without authority. Strict sentences that the courts hand down to offenders — and the same is true of lenient sentences — are determined by the actions of those offenders, for better or for worse, but the responsibility rests with the courts. The courts are not permitted to look sideways, to try and find another body besides themselves that will take upon itself the responsibility for the sentences that they hand down; the responsibility for sentencing cannot be shared by the court with others, not even with the public prosecution service that asks the courts to hand down one sentence or another, whether in general or in a specific case’ (ibid. [8], at p. 171).

When it is about to decide an appeal filed by the accused, the court of appeal should examine the sentence that was handed down in accordance with the same criteria that were considered in the trial court. We discussed these criteria extensively in CrimA 1958/98 A v. State of Israel [2] and we will cite here some of the remarks that were uttered in that case:

‘Within the framework of considering the sentence that is proposed, the court should address all the relevant sentencing considerations and examine whether the proposed sentence satisfies the proper balance between them. To this end the court should examine the proper sentence in the circumstances of the case and look at it from the perspective that the prosecution has presented to it in the plea bargain that it made. In examining the plea bargain, the starting point is the severity of the sentence proposed, in view of the nature and seriousness of the offence and the circumstances in which it was committed. Like in every case of sentencing, the court considers the personal circumstances of the accused and the policy considerations of proper sentencing, and takes all of these into account. The court cannot decide if there is a proper balance between the public interest and the benefit that was given to the accused without considering what would have been the proper sentence for the accused had there been no plea bargain, and what degree of leniency was shown to him as a result of the plea bargain. In order to assess the degree of leniency the court should consider, to the best of its ability and in view of the limitations arising from the facts that are before it, the extent of the waiver that the accused made in view of the likelihood of his being convicted or acquitted, had it not been for the plea bargain…

The court will, of course, examine the specific considerations of the prosecution in the circumstances of the particular case. Thus, for example, it will consider the difficulties that were anticipated in holding the trial, including the number of witnesses, the need to obtain testimony from witnesses who are not in Israel, consideration for the victim of the offence and the need to spare him the ordeal of testifying and being cross-examined. The court should also consider the public interest in the accused pleading guilty and taking responsibility for his actions. It should also take into account the public interest in the broad sense — the saving of judicial time and prosecution resources and the interest in effective use of the resources at the disposal of all the law enforcement authorities. Inter alia, the court should be aware of the need to obtain additional evidence to bring additional offenders to trial, whether in that case or in other cases that are unrelated to the case under consideration.

In addition to all of these, it should be added that there is a significant consideration that the court should take into account before it decides whether to accept or reject a plea bargain, and this is the expectations of the accused. An accused who pleads guilty on the basis of a plea bargain has waived his right to be tried; he has waived the right to cross-examine the prosecution witnesses, and he has also waived the chance of an acquittal…

Notwithstanding, this consideration also should be examined by the court in view of the other factors in the case before it and within the framework of considering the proper correlation between the benefit given to the accused in the circumstances of the case and the public interest in both the narrow and broad senses’ (ibid. [2], at pp. 608-609).

These criteria are also relevant, of course, in the appeal stage, and therefore in order to decide the defendant’s appeal, the court of appeal is required to examine whether the balancing formula is satisfied in the plea bargain that was examined by the trial court.

In addition, just as the prosecution has to contend with a new factor that requires its consideration at the appeal stage, namely the sentence of the trial court, so too must the court of appeal contend with this new factor. Therefore, in an appeal against a sentence that rejected a plea bargain, the court of appeal is also required to examine the reasons why the trial court rejected the plea bargain, as they are set out in the sentence, and to decide between the weight of the plea bargain that was made and the criticism levelled at it in the sentence that departed from the plea bargain. The court of appeal also has before it the revised position of the prosecution, whether it defends the plea bargain or not. The court of appeal should examine, inter alia, whether in the circumstances of the case there really was a basis for handing down a stricter sentence than the one that was agreed in the plea bargain and whether the trial court was justified in its reasons for departing from the plea bargain. Within the framework of this examination, the court of appeal should give weight to the position of the prosecution before it; it need not be said that the more that the considerations of the prosecution are decided in accordance with the criteria that we have set out above, the greater will be the weight of its arguments. Weight will, of course, be attached to the expectations of the accused, the appellant, and at the end of the proceeding the court will determine the correct balance between the considerations that we have discussed in our deliberations above.

Summary

34. Let us go back and summarize by saying that, as a rule, the prosecution should defend its position as determined in the plea bargain, even in the court of appeal. When the court that handed down the sentence to the accused held that the plea bargain does not satisfy the ‘balancing approach’ and for this reason it is not accepting it, or, in other words, when the court levels criticism at the plea bargain and hands down a sentence that is stricter than the one proposed in it, the prosecution should reconsider its position in the appeal. In appropriate circumstances the prosecution may decide not to defend the plea bargain as it was made, and it may express reservations with regard to it. It will do this subject to the explanation that it will give the court of appeal with regard to the reasons for making the plea bargain in the first place and with regard to the reasons why it is not defending it at the appeal stage. Thus we see that after the plea bargain has passed through the fiery furnace of the trial court, the prosecution is entitled, and sometimes obliged, in the appropriate circumstances, to make new arguments with regard to sentencing by supporting the sentence that was handed down, or even another sentence, as it thinks fit.

We should further point out that, according to the guidelines of the prosecution itself, it is proper, when making the plea bargain, for the prosecutor who is drafting the plea bargain to make it clear to the accused, or to his defence counsel, that he is unable to give any undertaking ab initio with regard to the prosecution’s position in the appeal, if the court hands down a stricter sentence than the one that has been agreed. If, for some reason, the prosecution does not act ab initio in order to warn the accused of the possibility that it will adopt a different position in an appeal, this will not compel it to support the original plea bargain, although the absence of a warning is a reason of significant weight that the prosecution will have to consider before it changes the position that it adopted in the plea bargain.

The prosecution’s position in an appeal is subject to the guiding principles of fairness to the accused and giving appropriate expression to the public interest in the broad sense, including the interest of upholding and respecting plea bargains.

The prosecution’s position is, as aforesaid, merely one of the factors that the court takes into account, even though it is a factor of great weight. The court of appeal will examine the circumstances of the case before it. It will consider whether, according to the balancing test, the sentence is appropriate in view of all the relevant factors. Finally it will decide whether to accept the plea bargain, uphold the sentence, or, perhaps, hand down another sentence that is appropriate in the circumstances of the appeal before it.

From general principles to the specific case

35. In this part of our deliberations, we must address the state’s request to overturn the judgment that is the subject of the further hearing and to determine that the sentences of the respondents should be as the District Court decided. According to the prosecution, the sentences that were handed down to the respondents in the appeal should be overturned and the original sentences handed down by the District Courts, after the plea bargains between the parties were rejected, should be reinstated. The prosecution is not ignorant of the case law rule that the purpose of a further hearing is to determine case law on a fundamental legal issue, but it is of the opinion that if its position is accepted, this should be given expression in overturning the judgment in the appeal, because it accepted plea bargains that are unworthy. On the other hand, counsel for the respondents argued that whatever the decision on the fundamental question, it would be unjust to overturn the decision that was given in the appeal and to make the respondents’ sentences stricter within the framework of the further hearing.

After studying the arguments of the parties, we see no reason to intervene in the sentencing outcome of the appeals under consideration. We will give details of our position in this respect below.

CrimA 7132/02 Peretz v. State of Israel

36. It will be remembered that in this case the first and second respondents were charged with rape while taking advantage of a state of unconsciousness and in the presence of another. Within the framework of the plea bargain that was made between the parties, the facts set out in the indictment were amended and the offence in the indictment was changed to one of an indecent act. It should be noted that this change was made, inter alia, because of a difficulty with regard to the evidence in the case. In addition to the change of the offence in the indictment, an agreement was reached with regard to the sentence and pursuant to this agreement the prosecution asked the court to impose a sentence of 18 months imprisonment whereas counsel for the defence asked the court to hand down only six months imprisonment that would be served by way of community service. In support of the plea bargain, counsel for the prosecution raised several arguments, among which he argued that the prosecution arrived at the plea bargain in view of the complainant’s position that she had forgiven the respondents and was not interested in a trial being held. As aforesaid, the plea bargain that was presented by the parties was rejected in the District Court. The District Court was of the opinion that the prosecution did not properly balance the various considerations and that the sentence proposed in the plea bargain was inconsistent with the seriousness of the offence. The court was especially critical of the fact that the prosecution took into account the complainant’s position, and it thought that too much weight had been given to her position. The District Court therefore handed down a sentence of five years imprisonment to each of the respondents, of which three and a half years would actually be served. Following this sentence, the respondents appealed to the Supreme Court, and in the hearing of the appeal the state gave notice that it did not support the plea bargain that had been made with the respondents in the District Court. From the state’s arguments in the appeal, it appears that it was of the opinion that the prosecution in the District Court balanced the various considerations in an erroneous manner, and therefore the sentence that was proposed within the framework of the plea bargain did not satisfy the balancing formula established in CrimA 1958/98 A v. State of Israel [2]. According to the state, there was indeed a difficulty in the evidence and there were also other reasons that supported the plea bargain in the case — such as the fact that the respondents did not have any previous convictions, the fact that the guilty pleas made it unnecessary to have the complainant testify and the complainant’s position that she forgave the respondents — but notwithstanding these, the sentence proposed was too lenient and was incapable of satisfying the balancing formula. The state therefore chose in the appeal to defend the sentence that rejected the plea bargain and repudiated the position that it presented in the District Court. As stated above, this court allowed the respondents’ appeal and sentence them to what the prosecution had proposed within the framework of the plea bargain. Since the panel that heard the appeal saw fit to approve the sentence that was agreed in the plea bargain, we see no basis for our intervention and for changing the sentence within the framework of this hearing.

37. When we now examine the state’s position in the appeal, we are of the opinion that it questionable whether there was sufficient basis for the state to repudiate the position that it presented in the plea bargain. Indeed, the acts of the respondents were very serious and they were especially serious in view of the fact that they committed the offences jointly and even filmed themselves during the act. In view of this, it would appear that the sentence that was agreed in the plea bargain was lenient. Notwithstanding, it was possible, in the circumstances of this special case, to accept the sentence that had been agreed. The respondents were, at the time of the act, approximately 22 years old, with no previous convictions. The respondents pleaded guilty to their actions in the court and expressed sincere and profound remorse. The probation officer’s reports that were filed with regard to the respondents were positive, and they state that a prolonged period of imprisonment may lead to a serious deterioration in the respondents’ condition and make it harder to rehabilitate them in the future. To this it should be added that the respondents pleaded guilty in the initial stages of the trial and thereby saved valuable judicial time. More important still, in view of the fact that the respondents pleaded guilty, the complainant was spared the ordeal of testifying in court and she was also spared cross-examination. In addition, the complainant’s position with regard to the plea bargain, which was expressed pursuant to the provisions of s. 17 of the Rights of Victims of Crime Law, 5761-2001, was positive and counsel for the prosecution told the District Court that the complainant forgave the respondents and was not interested in a trial being held.

As we have said, the rule that is also accepted by the prosecution is that the plea bargain should be defended even at the appeal stage, except in rare cases. It is questionable whether the present case is one of those rare cases, even if the sentence provided in the plea bargain is one that showed a considerable degree of leniency to the respondents. Among the other considerations, there was a basis for giving weight to the respondents’ expectation that they would be sentenced to an actual prison sentence that would not exceed eighteen months, and there was a basis for giving weight to the public interest in safeguarding the institution of plea bargains. To the aforesaid it should be added that in our case the respondents were not given a warning ab initio with regard to the prosecution’s right and ability to repudiate the plea bargain in the court of appeal. The absence of a warning in circumstances where it is not possible to determine that the respondents were aware of this possibility is a significant factor that combines with the other reasons that justify defending the plea bargain, and it gives them significant weight. Thus we see that even if in the state’s opinion it made an error in its discretion in the trial court, we have not been persuaded that this error is one of those kinds of error that justifies a repudiation of the position that was presented within the framework of the plea bargain.

CrimA 7418/02 Mizrahi v. State of Israel

38. In the case that is the subject of this criminal appeal, the third respondent was charged with rape and committing an act of sodomy on a girl who suffers from a mild retardation. According to the indictment, the third respondent had intercourse with the complainant on three occasions, after telling her that he would marry her, while he was aware of the retardation from which the complainant suffered and while he took advantage of this circumstance to obtain her consent. When the trial began, the parties notified the court that they had reached a plea bargain and the respondent pleaded guilty to the offences that were attributed to him. The parties gave notice that they had reached an agreement with regard to the sentence, and that they were asking the court to hand down to the respondent a sentence of six months imprisonment that would be served by way of community service, as well as a suspended sentence. While presenting the arguments in the District Court, counsel for the prosecution said that although it appeared, prima facie, that there was a significant disparity between the acts of which the respondent was accused and the sentence that was ultimately proposed, in the special circumstances of the case there was a basis for adopting the plea bargain. Counsel for the accused explained that the retardation from which the complainant suffered was a very slight one and the complainant had gone to the police after she understood that the respondent would not honour his promise to marry her. Counsel for the prosecution discussed the considerable reservations of the District Attorney’s Office as to whether it was proper to file an indictment in this case, and that it was finally decided to file an indictment in the belief that there was no basis in this case to ask for a significant prison sentence. Counsel for the prosecution also pointed out that there was also a certain problem with the evidence in the case because from tests that were conducted on the complainant it transpired that she had a tendency to fantasize and exaggerate. Counsel for both parties discussed how the seriousness of the case mainly lay in the manner in which the complainant’s consent was obtained to commit the acts and that the main harm suffered by the complainant was her feeling that she had been deceived by false promises that the respondent had used to seduce her. These arguments were also authenticated in a report about the victim that was filed in the court. There were different opinions in the District Court with regard to the plea bargain. Justice Y. Tzaban thought that in this case there was no reason to depart from the plea bargain, in view of the difficulties facing the prosecution in the case, the fact that the offence was on the lowest level from the viewpoint of its severity and the general policy of respecting plea bargains. But Justice Tzaban was in the minority. The two other justices, Justice M. Ravid and Justice Y. Hecht, were of the opinion that in the circumstances of this case, there were grounds for handing down to the respondent a custodial sentence that would be served behind bars, and notwithstanding the reasons supporting the plea bargain, it should not be accepted. Therefore the court, in the majority opinion, imposed a sentence of twelve months imprisonment, as well as a suspended sentence of another twelve months. As aforesaid, the respondent appealed the sentence to the Supreme Court, and in the appeal hearing the state presented a position that defended the sentence. According to the prosecution, after re-examining the evidence in the case, the prosecution came to the conclusion that the plea bargain was based on erroneous considerations, and that the sentence handed down by the District Court to the third respondent was the proper sentence. The third respondent’s appeal was allowed by this court, which sentenced him in accordance with what had been agreed in the plea bargain. In the case of the third respondent also we saw no reason to intervene, within the framework of this hearing, in the sentence that was handed down by this court when his appeal was allowed.

39. With regard to the prosecution’s position in the appeal, when we examine all the circumstances, it is possible to understand the prosecution’s reservations with regard to defending the plea bargain, since it is a plea bargain that treated the respondent with considerable leniency. Notwithstanding, in the present case the prosecution presented the District Court with reasons that supported the plea bargain, which arose both from the evidential aspect and the normative aspect of the plea bargain. The plea bargain was made in this case at the beginning of the trial, which saved time and made it unnecessary to hear the complainant’s testimony. When we examine the circumstances of the case according to the criteria that we discussed above, it appears that in the circumstances of the case there was a basis for taking into account the respondent’s expectation in accordance with the plea bargain. We should also add that even if there was a basis to the District Court’s criticism  with regard to the plea bargain, it would appear that the scope of the error in the prosecution’s discretion that the District Court discussed was not so extensive, and in the absence of special reasons for this, there was a basis for giving weight to the interests that support the defence of plea bargains even in the court of appeal. To the aforesaid we should add that in this case too the respondent was not warned ab initio of the prosecution’s ability to repudiate its original position in the court of appeal and in this case too the aforesaid circumstances should be given significant weight within the framework of the considerations for defending the plea bargain.

40. Thus we see that even though the position presented by the state in the appeal with regard to the respondents’ sentences was understandable in view of the sentences that were given, it is doubtful whether it was consistent with the criteria that we have discussed in our deliberations. We should remember that the cases are difficult and borderline ones, and that the aforesaid criteria were not known to the prosecution when it determined its position with regard to the sentence in the appeals under discussion.

Therefore the respondents’ sentences, as determined in the judgment which is the subject of this further hearing, will remain unchanged. With regard to the third respondent, whose sentence was stayed, the Director of Community Service shall submit an opinion within thirty days, and when that is received we will complete the judgment in his case.

Vice-President Emeritus E. Mazza

I agree with the judgment of my colleague Justice Beinisch.

As a rule, unless there is an express stipulation to the contrary within the framework of the plea bargain that it made with the accused, the prosecution is also liable to defend the plea bargain before the court of appeal. There are rare cases that are exceptions to this rule, in which the prosecution realized after the event that it erred in agreeing to the plea bargain, whether as a result of discovering new facts of which it was unaware when it agreed to the plea bargain, or because the reasoning in the judgment of the trial court, in refusing to accept the recommendation with regard to the sentence that should be handed down to the accused, persuaded it that its consent to the plea bargain was mistaken from the outset. But when justifying the change in its position, the prosecution must give details, within the framework of its arguments before the court of appeal, of the facts and considerations that led it to reach the conclusion that it erred in agreeing to the plea bargain (Markovitz v. State of Israel [5], at pp. 57-58, and Shiloah v. State of Israel [6], at p. 682). In any case, the mere fact that the trial court sentenced the court to a stricter sentence that it was asked to do by the prosecution, on the basis of the plea bargain, cannot release the prosecution from the obligations that it took upon itself towards the accused within the framework of the plea bargain, since in essence these obligations are no different from any other contractual or administrative undertaking that an authority takes upon itself vis-à-vis the individual, from which it can be released only when there are essential public needs (O. Gazal, ‘The Prosecution’s Position in an Appeal against the Rejection of a Plea Bargain,’ 1 Din uDevarim (2005) 507). From this it follows prima facie that the prosecution would do well in plea bargains that it makes with defendants to make sure to include an express term that restricts its obligations to act on the basis of the plea bargain to the proceeding that is taking place before the trial court. Notwithstanding, I think it should be emphasized that although the inclusion of such a term in the plea bargain will allow the prosecution to reconsider the position that it will adopt before the court of appeal, without it being dependent on the existence of circumstances that can justify its being released from its contractual or administrative obligation under the plea bargain, nonetheless even the inclusion of such a term cannot exempt the prosecution, in its arguments before the court of appeal, from its duty to justify any change in its position with logical and proper reasons.

In principle (although not in all its details and particulars) the opinion of Justice Beinisch is consistent with my aforesaid approach. It is also consistent with the criteria that were set out recently in our unanimous judgment in CrimA 1958/98 A v. State of Israel [2]. Like my esteemed colleague, I too am of the opinion that in the cases that are the subject of this further hearing the prosecution did not established a solid foundation for its repudiation at the appeal stage of the plea bargains that it made with the respondents before their cases were heard in the trial court. For this reason I supported, at the appeal stage, allowing the respondents’ appeals, and for this reason I agree to the denial of the state’s petition that is before us.

Vice-President M. Cheshin

I agree with the opinion of my colleague, Justice Beinisch.

2.   There are three ‘parties’ before us, and each of the three is one of the three vertices of a triangle. The three vertices are the Supreme Court, the prosecution (the state) and an accused who has been convicted and it now litigating before the Supreme Court. Each of the three sides of the triangle, which lies between two vertices, represents a relationship between the two vertices at its ends, and the three relationships are the relationship between the prosecution and the accused, the relationship between the court and the prosecution and the relationship between the court and the accused. These three relationships are not of the same standing. The third relationship, the relationship between the court and the accused, is the main and central one, and the two other relationships are subservient and defer to it. These two other relationships are secondary; the relationship between the prosecution and the accused and the relationship between the court and the prosecution merely provide the raw material for the main relationship between the court and the accused, and at the end of the proceedings in this relationship the court sentences the accused. Let us not misunderstand; when we say that the two secondary relationships merely provide the raw material for the third relationship, we do not intend to detract from their importance; without those two relationships the third relationship would not come into existence, and their existence is a prerequisite for the existence of the third relationship. Moreover, if it is said that during the appeal proceedings the prosecution is not permitted to change its opinion with regard to a plea bargain that it made — even where the trial court decided not to accept the plea bargain that was made — then the third relationship may never come into being. But we should remember that ultimately it is the court that decides the defendant’s case, whether strictly or leniently, and where the law indicates a strict sentence, that is what prevails. The authority and power to hand down sentences — and this is the main point — is the prerogative of the court; the responsibility for sentencing rests on the court’s shoulders; and the court’s decision is the final and decisive word on the subject. It follows from this that the prosecution’s position with regard to sentencing, no matter how important, is merely one of the factor that should be considered by the court; it is without doubt an important and central factor, but in appropriate cases there may be other important considerations that outweigh it.

3.   In CrimA 1958/98 A v. State of Israel [2], the Supreme Court discussed, in the opinion of Justice Beinisch, the considerations that should guide the court when a plea bargain is presented to it, and the relative weight that ought to be given to each of the considerations in accordance with facts of the specific case. The court of appeal should also follow this ‘sentencing guide,’ but in addition to the considerations that were before the trial court there are also the considerations that arise from the special event that the plea bargain was not adopted by the trial court. The same is true from the viewpoint of the three vertices: the disappointed expectation of the accused, the various considerations of the prosecution in the trial court and the court of appeal and the reasons why the trial court refused to adopt the plea bargain. My colleague Justice Beinisch discussed these considerations at length, and I will not say more. But I shall not tire of recalling that:

‘The authority to hand down sentences to persons who have been found guilty in their trial is entrusted to the courts — to them and to no other. With this authority comes responsibility, for it is well known that there is no authority without responsibility, just as there is no responsibility without authority’ (Levy v. State of Israel [8], at p. 171).

President A. Barak

I agree with the opinion of my colleague Justice Beinisch and the remarks of my colleague Vice-President M. Cheshin.

1.   Like Justice D. Beinisch, I too am of the opinion that the plea bargain is an undertaking of the prosecution to present a lenient sentencing recommendation to the trial court. In my opinion too, as a rule, the prosecution also should honour in the court of appeal a plea bargain that it made in the trial court. Public confidence in the prosecution authorities dictates, as a rule, a uniform and well-formulated institutional position. But there may be exceptions to this rule. In practice, there is no dispute between the parties that no sweeping determination should be made to the effect that the prosecution is always committed to defend the plea bargain in the court of appeal. The sentence, which examines whether the plea bargain should be allowed to stand, according to the criteria that were outlined in CrimA 1958/98 A v. State of Israel [2], is an additional factor that confronts the prosecution, and it obliges it to re-examine its position. I agree with the various factors that should be considered by the prosecution when deciding its position before the court of appeal, as discussed in full by Justice D. Beinisch.

2.   I agree that criticism by the trial court with regard to the plea bargain does not necessarily require the prosecution to change its position, but it does require a re-examination of all the considerations and the balance between them. At the appeal stage, the court of appeal is required to examine the judgment that rejected the plea bargain. The court of appeal should examine whether the trial court ought to have adopted the plea bargain that was presented to it by the prosecution and the defence. When the trial court has rejected the plea bargain, the court of appeal should examine whether according to the ‘balancing test’ it should have adopted the plea bargain that was made (see, for example, CrimA 3694/00 Mordoff v. State of Israel [14]; CrimA 4886/02 Glisko v. State of Israel [15]). The prosecution, as a party in the appeal proceedings, cannot ignore the judgment that is the subject of the appeal. It is obliged to address it objectively, and consider its position in the appeal accordingly. We are not merely speaking of showing ‘respect’ to the court. This obligation is required by the very nature of an appeal, which compels the litigants to formulate a revised position with regard to the judgment that is the subject of the appeal. The prosecution is therefore liable to confront the criticism in the sentence directly. The criticism usually requires a re-examination of its considerations and in exceptional cases may even lead to a change in the original position. The prosecution’s position has no real value if it is entirely based on sticking to the plea bargain for formal reasons. The prosecution should contend objectively with the sentence that did not adopt the plea bargain (on the grounds that it does not satisfy the ‘balancing test’). The sentence is not merely a new circumstance. It is the decision that is the subject of the criminal appeal. It is the starting point for exercising judicial scrutiny in the appeal.

3.   As Justice Beinisch has pointed out, the prosecution’s position is merely one factor in the considerations of the court, which scrutinizes the sentence of the trial court. Within the framework of the appeal, the court should consider two separate questions. First, was there was a basis for departing from the plea bargain? Second, was there was a basis for handing down the sentence that was de facto given to the accused? If the courts finds the answer to the first question to be no, the court should allow the appeal and hand down a sentence that is consistent with the plea bargain. If it finds that only the answer to the second question is no, the court should hand down a sentence that is appropriate in the circumstances (by taking into account the criteria determined in CrimA 1958/98 A v. State of Israel [2]).

4.   The main question that comes therefore before the court of appeal is whether the trial court rightly decided that the plea bargain did not satisfy the ‘balancing test.’ The ‘balancing test’ addresses the question whether a balance was maintained between the benefit that the plea bargain gives to the accused and the benefit that the plea bargain gives to the public interest. The balancing process is complex. The balancing process is based on conflicting considerations. On the one hand there are the advantages inherent in the plea bargain, including the avoidance of difficulties that were anticipated in conducting a trial, consideration for the victim of the offence, the guilty plea of the accused and his taking responsibility for his acts, and the savings in judicial time and the prosecution’s resources. On the other hand, the court should consider the degree of leniency that was shown to the accused as a result of the plea bargain, taking into account the chances of obtaining a conviction without the plea bargain, against the background of the concern relating to public confidence in the law enforcement system and the public interest in having an appropriate sentencing policy. The question is whether there is a fitting balance between the advantages in the plea bargain (for the public and the accused) and the proper sentencing policy.

5.   The prosecution, which subjects the plea bargain to the critical ‘balancing test,’ acts as an independent administrative authority. The prosecution assesses the probable results of the trial without the accused pleading guilty, the chances of obtaining a conviction, and it considers whether the court will regard the evidence as credible. The prosecution relies on its knowledge, professionalism and experience that assist it in assessing the results of conducting a full trial without a guilty plea and in adopting a position with regard to the plea bargain. It is a question of a factual and legal assessment. Naturally it is possibly to reach different conclusions. The balancing test does not dictate only one result. The criteria determined in CrimA 1958/98 A v. State of Israel [2] create, as a rule, a relatively broad sentencing margin from the viewpoint of the prosecution authorities. The prosecution is an administrative authority that exercises executive power. In exercising its power it acts independently and it has broad discretion in the administrative sphere. It should be noted that the court that has discretion whether to adopt the plea bargain or not. When the court does not adopt the prosecution’s position, this does not indicate, in itself, that there was a serious defect in the prosecution’s conduct. The prosecution authorities and the court are separate institutions. The considerations are not necessarily the same. The court that exercises independent discretion in handing down the sentence may depart from the plea bargain, even when the prosecution’s conduct fell within the margin of reasonableness in the administrative sphere.

6.   Indeed, the court does not necessarily adopt the balance made by the prosecution between the various considerations that underlie the plea bargain. From the perspective of the rules of evidence, the court usually depends upon the prosecution. It does not know the evidence and certainly does not examine it. This is not the case with regard to the other considerations, such as the normative and institutional perspectives, sentencing policy and the public interest. The duty of fairness to the accused does not apply with the same intensity to the court. The court naturally takes into account the expectations of the accused, and it considers, as a part of the public interest, the importance of upholding the institution of plea bargains. But it does not itself have any obligation to the accused either in the contractual sphere or in the administrative sphere. All of this may result in the sentence departing from the plea bargain, even when the prosecution did not act unreasonably as an administrative authority. Similarly, at the appeal stage the prosecution may think that the plea bargain did not satisfy the balancing test and the trial court rightly departed from it, whereas the court of appeal may decide otherwise.

7.   It need not be said that the criminal appeal concerns appellate judicial review of the sentence and not administrative judicial review of the prosecution. An examination of the prosecution’s position is a tangential question that is merely one aspect of the question whether the court of appeal should change the sentence. The significance of the determination that there was a defect in the prosecution’s conduct that seriously undermines its position is that the prosecution’s position will be ignored by the court of appeal. The court will only determine that the prosecution’s discretion is so flawed that it should be ignored when the prosecution’s position is unreasonable in the extreme and therefore defective under the rules of administrative discretion (cf. HCJ 935/89 Ganor v. Attorney-General [16]). There is a broad margin of reasonableness with regard to the prosecution’s conduct. If the prosecution’s position is a possible one that falls within the margin of reasonableness, there is no basis for setting it aside under the doctrine of administrative discretion and there is no basis for ignoring it in the court of appeal. The court ought to show restraint when it considers undermining the legitimacy of the prosecution’s position and determining that the prosecution acted improperly. In so far as the prosecution’s position is reasonable, the court should take it into account, even though it naturally is not obliged to adopt it. The mere fact that the court’s decision is ultimately different from the prosecution’s position does not indicate that the prosecution acted with extreme unreasonableness or with any significant impropriety.

8.   With regard to the second question before the court of appeal — whether the sentence handed down was excessive — it should be remembered that the court of appeal does not tend to intervene in the considerations and conclusions of the trial court, unless the sentence departs significantly from the sentence that should have been imposed. Even when the sentence is a strict one, the court of appeal does not intervene if the sentence is not excessive (CrimA 326/99 Abud v. State of Israel [17]):

‘It is well known that the court of appeal does not put itself in the trial court’s place with regard to the sentence; its intervention in this regard is limited to circumstances in which the trial court made a mistake or the sentence that it handed down departs in the extreme from the sentences that are usually given in similar circumstances’ (CrimA 1242/97 Greenberg v. State of Israel [18]).

9.   Finally, I agree with my colleague Justice Beinisch that the respondents’ sentences, as determined in the appeal that is the subject of the further hearing, should remain unchanged. This is a further hearing, which does not focus on the specific case that was decided in the Supreme Court, but on the general rule that was determined. Therefore there is no basis at this procedural stage, and in view of the time that has passed and the continuing suffering to the respondents, to change the outcome in the sentence handed down in the appeal. Were I to consider the cases on their merits, I am not persuaded that the plea bargains in the two cases satisfied the ‘balancing test,’ especially in so far as CrimA 7418/02 Mizrahi v. State of Israel [1] is concerned.

Justice Emeritus J. Türkel

1.    I agree with the opinion of my esteemed colleague, Justice D. Beinisch, and with the remarks of my esteemed colleagues the President, vice-President Emeritus E. Mazza and Vice-President M. Cheshin.

 In her opinion Justice D. Beinisch discussed in detail the reasons that justify the prosecution supporting plea bargains in the hearing of an appeal and also the reasons that justify the prosecution changing its position. Among the reasons for supporting the plea bargain, she mentioned the prosecution’s duty of fairness to the accused. I will add a few remarks with regard to the importance of this duty, which is derived, in my opinion, from the duty of executive authorities to adopt moral and just criteria in their relationship with the public as a whole and individual members of the public and which is based on values such as good faith, fairness and integrity.

2.    Our rabbis, of blessed memory, imposed on the individual an obligation to conduct business faithfully and to keep promises, and it would appear that they made these demands more in the moral and ethical sphere than in the sphere of legal obligations. But, as stated above, these requirements apply not only to the relationship between one person and another but also to the relationship between government authorities or persons holding office in those authorities on the one hand and the public and members of the public on the other (Kogen v. Chief Military Prosecutor [13], at p. 96 {___}). In my opinion, there is a similarity between this relationship and the relationship between parties to a contract, and we should take note of the tendency of the courts in the United States to examine this relationship from the perspective of contractual relations, even though, of course, the analogy is not a perfect one (see the reservation of Justice D. Beinisch in para. 32 of her opinion).

With regard to this duty of the state it has been said:

‘The state, through those who act on its behalf, is a trustee of the public, and the public interest and public property have been deposited in its care for the purpose of using them for the benefit of the public as a whole… This special status is what imposes on the state the duty to act reasonably, honestly, with integrity and in good faith. The state may not discriminate, act arbitrarily or in bad faith or allow itself to have a conflict of interests. It should act in accordance with the rules of natural justice. In short, it should act fairly’ (per Justice A. Barak in HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [19], at pp. 745-746).

It has also been said that:

‘Government authorities have the duty to respect agreements that they have signed… The duty of the authority to carry out its undertakings and promises derives, therefore, from public policy… It is also required by its general duty as a government body to act fairly and reasonably’ (per Justice T. Or in Kogen v. Chief Military Prosecutor [13], at p. 78 {___}).

And elsewhere:

‘The duty of fairness that binds an authority in its dealings with the citizen by virtue of public law precedes, and is broader and stricter than, the duty of good faith arising from the law of contracts, and it applies to the authority in the whole range of its activities both in the field of private law and in the field of public law… The authority is therefore required to exercise a degree of fairness in its contractual relationship with the individual, which is greater than what is expected of a private party to a contract’ (per Justice A. Procaccia, in CA 6518/98 Hod Aviv Ltd v. Israel Land Administration [20], at pp. 45-46; see also HCJ 164/97 Conterm Ltd v. Minister of Finance [21], at pp. 316-319 {___-___}; CA 3541/98 Di Veroli-Siani Engineering (1990) Ltd v. Israel Land Administration [22], at p. 153; D. Barak, The Contractual Liability of Administrative Authorities (1991), at pp. 57-62; G. Shalev, The Law of Contracts (second edition, 1995), at pp. 660-661; G. Shalev, Contracts and Tenders of the Public Authority (1999), at pp. 42-44, 118-119).

3.    We should be watchful to ensure the observance of these duties on the part of government authorities. Let us not forget that the safeguarding of moral criteria and the values of good faith, fairness and integrity — even at the price of defending a plea bargain that the court rejected — makes society stronger and also reinforces the confidence that the public has in government authorities.

Justice E. Rivlin

I agree with the opinion of my colleague, Justice D. Beinisch, and with the remarks of my colleagues, President Barak, Vice-President E. Mazza, Vice-President M. Cheshin and Justice J. Türkel.

Justice A. Procaccia

I agree with the opinion of my colleague, Justice D. Beinisch.

Justice E.E. Levy

I agree with the opinion of my colleague, Justice D. Beinisch.

Justice A. Grunis

1.    My approach is different from the approach of my colleagues. Even though I agree that the prosecution is not absolutely bound by the plea bargain that it made when the problem arises in the court of appeal, in my opinion it is only in very exceptional cases that it should be entitled to repudiate its consent. This is especially true when the plea bargain did not include a warning in this regard, namely that the prosecution is not obliged to support the plea bargain before the court of appeal. The main point in my opinion is that in those rare cases where the prosecution before the court of appeal supports a sentence that departs from the plea bargain, the accused (the appellant) should be allowed to retract his guilty plea.

2.    The premise on which my approach is based has its origins in the inherent disparity of forces between the state, which is the prosecutor in the criminal proceeding, and the accused. The forces of the state are formidable and its resources are immense. The police and the prosecution authorities have many comprehensive powers for the purpose of enforcing the criminal law. On the other side is the accused, who is sometimes not represented at all. Admittedly, in cases of relatively serious offences the accused, if he has limited means, can avail himself of the services of the Public Defender’s Office (see the Public Defender’s Office Law, 5756-1995). But it is no secret that the resources available to the Public Defender’s Office, for example for the purposes of obtaining an expert opinion, are limited and certainly cannot be compared in any way to the immense resources available to the prosecution. Various arrangements within the framework of the rules of criminal procedure are intended to balance, even if only to a small degree, the basic inequality between the parties involved in the criminal proceeding — the state on the one hand and the accused on the other. Thus, for example, the prosecutor is obliged to allow the accused and his defence counsel to inspect the investigation material relating to the indictment in the case of an offence that is a serious misdemeanour or a felony (s. 74 of the Criminal Procedure Law [Consolidated Version], 5742-1982). By contrast, the prosecution has no reciprocal right to inspect in advance the evidence that the accused has assembled and that he intends to submit (except in the case of an expert opinion: s. 83 of the Criminal Procedure Law [Consolidated Version], 5742-1982). Therefore, when we examine issues in the field of criminal procedure and the rules of evidence we should be aware and mindful at all times of the disparity of forces between the two parties. We ought to be so even when we are examining the issue of plea bargains and the question whether and to what extent the prosecution is committed to a plea bargain that it made with the accused.

3.    The institution of plea bargains exists in our legal system and in similar legal systems. There are those who forcefully and absolutely oppose this institution (see, for example, A.W. Alschuler, ‘The Changing Plea Bargaining Debate,’ 69 Cal L. Rev. (1981) 652). This is not the place to examine the question whether the existence of this institution is justified. One thing is clear: were plea bargains not to be made between the prosecution and the defence, the law enforcement system would collapse. A significant number of criminal cases that are filed in the courts in Israel and in other countries end with a plea bargain and without holding a full trial, with all that this involves (see CrimA 1958/98 A v. State of Israel [2], at p. 588). The considerations that lead the prosecution to agree to a plea bargain are, inter alia, the following: the knowledge that it is not possible de facto to hold a full trial from beginning to end in each case because of the workload of the courts; a preference that the criminal proceeding should end within a short time to a protracted trial that will end a long time after the offence was committed; problems in the evidence, i.e., the possibility that ultimately the prosecution will not succeed in discharging the burden of proof; a desire to refrain from having certain witnesses testify because of the additional trauma that is likely to be caused to them by testifying (and for the other advantages inherent in plea bargains from the viewpoint of the state and the public interest, see CrimA 1958/98 A v. State of Israel [2], at pp. 590 et seq.). From the viewpoint of the accused, the plea bargain has one major advantage, namely that the sentence that will be handed down will be more lenient that the one he can expect if he is convicted in a trial that is held in the conventional manner (see CrimA 1958/98 A v. State of Israel [2], at p. 589). Naturally, in each specific case the relative weight of the considerations that lead to the making of a plea bargain varies, especially for the prosecution. The plea bargain includes a very significant element from the viewpoint of the accused, since the agreement to the plea bargain includes a duty to plead guilty to the facts in the agreed indictment and thereby the accused automatically waives the possibility that a full trial will end in his acquittal. It is therefore clear that both parties involved in reaching the plea bargain have an interest in the criminal proceeding ending after a short proceeding. The court is not, of course, a party to the plea bargain, and therefore the agreement does not bind it, nor is it compelled to impose the agreed sentence (whether it is a plea bargain that stipulates a specific sentence or it is a plea bargain that defines a lower and upper limit for sentencing). Notwithstanding, we cannot ignore the fact that the accused has a reasonable expectation that the court will not depart from the agreed sentence and in the great majority of cases he is not disappointed in this expectation. Indeed, in the plea bargain itself the accused should already be warned that the court is not bound by the plea bargain. Moreover, the rule is that the court should warn the accused that it is not bound by the plea bargain. Therefore, if we examine the plea bargain from a contractual perspective, we are led to the conclusion that the accused has no cause for complaint if the court does not adopt the plea bargain. But we should not forget that premise that we have discussed, namely the disparity of forces between the parties — the state and the accused. We should recall that the law of contracts includes special arrangements that are intended to deal with contractual situations where there is an inherent inequality between the parties to a contract (for example the Standard Contracts Law, 5743-1982). Let us now address the question whether and to what extent the state is obliged to support the plea bargain at the hearing of an appeal filed by an accused who was given a sentence that departed from the plea bargain.

4.    In the two cases under consideration in this further hearing the plea bargain with each of the defendants did not include any provision that warned them that the prosecution did not undertake to support the plea bargain before the court of appeal. As my colleague Justice D. Beinisch said, according to the guidelines of the State Attorney’s Office a warning of this kind should be included in a plea bargain. I would not be surprised if in a significant number of plea bargains, especially those made with regard to relatively minor offences, the aforesaid guideline is not strictly observed. Such a situation gives rise to two separate questions. First, is the prosecution obliged to support a plea bargain before the court of appeal, or is it permitted to argue that the sentence of the trial court is correct and proper? Second, is the accused entitled to retract his guilty plea if the prosecution is no longer bound by the plea bargain?

The question whether the prosecution is also bound by a plea bargain in the court of appeal is likely to arise both in a case where the plea bargain included a warning in this regard and especially in a case where care was not taken to follow the guideline with regard to giving a warning. If we treat plea bargains like an ordinary contract, and I question whether this is proper, we will be required to say that the accused has no grounds for complaint if the plea bargain contained a provision according to which the prosecution is not bound to support the plea bargain before the court of appeal. Notwithstanding, it would appear that there is no dispute that even in such a situation the rule is that the state should support the plea bargain before the court of appeal apart from in exceptional cases. The difficult question is what constitutes an exceptional case. In any case, in the two cases before us a warning as aforesaid was not included in the plea bargain. Therefore, we should answer the question whether the prosecution is entitled to ignore its undertaking, notwithstanding the fact that it did not take care to warn the accused that it would not be liable to support the plea bargain before the higher court. My colleague Justice D. Beinisch examines the aforesaid situation in accordance with the rules that apply to the question of an administrative authority being released from a contract that it made (para. 31 of her opinion). I too shall follow this path. I am therefore prepared to accept that in principle the state is entitled to be released from an undertaking that it took upon itself in a plea bargain. The critical issue in my opinion is what is the significance of the state being released from its undertaking for the accused. In other words, is the accused bound by his undertaking, namely his guilty plea to the facts in the agreed indictment after the other party to the plea bargain has been released from its undertaking, and if so, to what degree? When we are speaking of being released from an undertaking, we mean that the other party to the contract cannot enforce its performance (see CA 6328/97 Regev v. Ministry of Defence [23], at p. 522). This means that the accused cannot compel the prosecution to comply with its undertaking vis-à-vis sentencing. What do the laws applying to the release of an administrative authority from a contract tell us about the other party? The answer is that the other party who is not entitled to enforcement is at least entitled to the restitution of what he gave under the contract (Regev v. Ministry of Defence [23]; see also G. Shalev, Contracts and Tenders of the Public Authority (2000), at pp. 74-75). There is no need to consider the question of the right to, and scope of, any compensation, because it may be assumed that the main purpose of the accused is that he will receive the sentence in accordance with the plea bargain rather than compensation (together with a sentence that departs from the plea bargain). We should therefore examine what the accused ‘gave’ when he agreed to the plea bargain. The answer is self-evident: the guilty plea to the facts of the indictment is the ‘consideration’ that the prosecution received from the accused. It follows that if we allow the prosecution de facto to repudiate at the appeal stage the undertaking that it took upon itself in the plea bargain, we should also allow the accused to retract his guilty plea (cf. O. Gazal, ‘The Prosecution’s Position in an Appeal against the Rejection of a Plea Bargain,’ 1 Din uDevarim (2005) 507, at pp. 529-531). Let me clarify: the accused can choose between two alternatives. The first is to retract his guilty plea, which will result in the cancellation of the verdict, so that his trial will be conducted in the conventional manner like any proceeding where the accused denies the facts. Naturally, choosing this alternative involves a risk of a conviction and being given a sentence that is even stricter than the one that the trial court handed down when it departed from the plea bargain. The other is to support the plea bargain and try to persuade the court of appeal that the trial court erred when it decided not to accept the plea bargain and handed down a sentence that departed from it.

The possibility of retracting a guilty plea when the accused was not warned with regard to the prosecution’s right to stop supporting the plea bargain before the court of appeal creates a parallel to another kind of omission. I am referring to the situation that is created when it is not made clear to the accused that the court is not bound by the plea bargain and that it is entitled to hand down a sentence that departs from it. This omission makes it possible for the accused to retract his guilty plea (see Bahmotzky v. State of Israel [9], at pp. 553-554; CrimA 1958/98 A v. State of Israel [2], at p. 614). Does logic not dictate that in both of the aforesaid cases the same law should apply?!

5.    One of the arguments that can be made against my approach, according to which in certain cases the accused should be allowed to retract his guilty plea, is that the accused does not take any risk when he gives his consent to the plea bargain. If the plea bargain is not adopted by the court, he can, so it may be argued, retracts his consent and be tried in the conventional manner. My answer to this is that the accused does indeed take a risk, since he cannot know in advance whether the sentence that will be handed down at the end of an ordinary trial (assuming he is convicted) will be less than the sentence that was handed down by the court when it departed from the plea bargain. Since there is a risk in retracting his guilty plea, it is not to be expected that in every case as aforesaid the accused will indeed decide to retract his guilty plea. In any case, in our case we are dealing with a situation that was created in the court of appeal, when the prosecution no longer supports the plea bargain. We are not dealing with the question whether the accused may retract his guilty plea immediately after a sentence that departs from the plea bargain is handed down, before it is known what the prosecution’s position will be in the court of appeal (in this regard, see CrimA 1958/98 A v. State of Israel [2], at pp. 614-615).

6.    I have addressed the issue on the assumption that it is governed by the rules concerning the release of an authority from a contract. According to these rules, we have found that the accused should be allowed to choose the possibility of retracting his guilty plea. The aforesaid possibility is, in my opinion, required even more forcefully for general reasons that concern the disparity of forces between the parties, which I have already addressed, and the duty of fairness that binds the prosecution. Let us recall once more that we are dealing with a situation of manifest inequality. A balance, albeit partial, of the disparity of the forces can be achieved by giving the accused the possibility of choosing to retract his guilty plea. Different rules of conduct apply to the state and to the accused. We expect the state to act with fairness and good faith on a high level. Therefore the prosecution should be required to comply, even in the court of appeal, with the undertaking that it took upon itself in the plea bargain in the great majority of cases. As I have said, there will be exceptional cases in which it will be possible to understand why the state saw fit to repudiate, in the court of appeal, its commitment to the plea bargain. Notwithstanding, the special requirements imposed on it with regard to fairness and good faith will be satisfied by allowing the accused to choose whether to retract his guilty plea.

7.    This proceeding of a further hearing concerns the fundamental question concerning the prosecution’s position in the court of appeal after a sentence that departed from the plea bargain was handed down. As I have explained, my opinion is that if the prosecution is entitled to be released from the plea bargain even though it did not include a warning with regard to its power to be released when the appeal is heard, the accused should also be allowed to retract his guilty plea if he sees fit to do so. With regard to the specific case of the respondents, I agree with the outcome recommended by my colleague Justice D. Beinisch, namely that the sentence agreed in the plea bargain is left unchanged.

CrimFH 1789/98

State of Israel

v.

Binyamin Kahane

The Supreme Court Sitting as the High Court of Justice

[November 27th, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, Y. Kedmi, D. Dorner, J. Türkel

Petition to the Supreme Court sitting as the Court of Criminal Appeals

Facts: Further hearing in the judgment of the Supreme Court (President A.  Barak and Justices A. Goldberg and E. Mazza) dated March 2, 1998 in CA 6696/96 Benyamin Kahane v. State of Israel, in which Benyamin Kahane was acquitted of offenses based on sections 133 and 134(c) of the Penal Code 5737-1977.  The acquittal overturned a conviction in the District Court which in turn had overturned an acquittal in the Magistrate’s Court.  Two main issues were under consideration in the further hearing.  The first dealt with the characteristics of the protected value or values in the offense of sedition in general and in section 136(d) in particular.  The second was the question of the presence of a probability test within sections 133 and 134(c) of the Penal Code.  These questions were dealt with particular emphasis on their implications for freedom of expression. 

Held: In the majority opinion, written by Justice Or, the acquittal was overturned and the defendant was convicted of the offenses with which he had been charged.  It was held that the protected values in the offense of sedition is not limited to harm to the structure of the regime but also includes protection of the value of “social cohesiveness” as defined by the court.  It was further held that sections 133 and 134(c) contain a probability test.  As for the degree of probability required, the court stated that while it was inclined to prefer the near certainty test, since the court held that this more stringent test had, in any event, been met it did not see it necessary to determine conclusively what the appropriate degree of probability was that was required.

President Barak in a separate opinion was of the view that the value protected in the offense of sedition is limited to the prevention of harm to the stability of the regime.  President Barak was also of the view that given the broad view of sedition taken by the majority he agreed with the tendency of Justice Or that the proper proportional test would be that of near certainty, but that this test had not been met in the circumstances of the case.  In the view of President Barak, the further hearing should have been denied.

Vice-President S. Levin in a separate opinion stated his general agreement with Justice T. Or and referenced his opinion in CrimFH 8613/96.

Justice Y. Kedmi in a separate opinion agreed with the outcome of Justice Or’s opinion but was of the view that sections 133 and 134(c) did not contain a probability test.

Justice D. Dorner in a separate opinion agreed with the outcome of Justice Or’s opinion but was of the view that the offense of sedition does not contain a probability test.

Justice J. Türkel in a separate opinion was of the view that the further hearing should have been denied.

Justice E. Mazza in a separate opinion was of the view that offenses of sedition do not include a probability element.

For petitioners—Talya Sasson, Eyal Yannon

For respondent—Yair Golan

.

Legislation cited:

Penal Code 5737-1977, ss. 19, 20(a), 34Q, 34U, 133, 134, 134(c), 135, 136, 136(1), 136(2), 136(3), 136(4), 138, 144B, 173, 198, ch. H, section A.

Penal Code Ordinance 1936, s. 60(1).

Prevention of Terrorism Ordinance 5798-1948, ss. 4, 4(a).

Draft legislation cited:

Proposed Penal Law (Amendment number 24) 5745-1985, Hatzaot Hok 1728 of April 17, 1989.

Israeli Supreme Court cases cited:

1. CA 6696/96 Kahane v. State of Israel IsrSC 52(1) 535.
2. CrFH 8613/96 Jabarin v. State of Israel (not yet reported).
3. HCJ 2722/92 Alamrin v. IDF Commander in Gaza Strip, IsrSC 46(3) 693,705.)
4. HCJ 7351/95 Munier Navuani v. Minister of Religious Affairs and Others IsrSC 50(4) 89.
5. CA 2000/97 Lindorn v. Karnit IsrSC 55(1)12
6. EA 2, 3/84 Neiman v. Chairman of Election Committee for Eleventh Knesset [1985] IsrSC 39(2) 225.
7. HCJ 73, 87/53 Kol Ha’am Ltd. v. Minister of Interior [1953] IsrSC 7, 871; IsrSJ 1 90.
8. HCJ 399/85 Kahane and Others v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.
9. CrimA 2831/95 Rabbi Ido Elba v. State of Israel IsrSC 50(5)221.
10. HCJ 2481/93 Yosef Dayan v. Commander Yehuda Wilk, Jerusalem District Commander IsrSC 58(2) 456.
11. CrimA 697/98 Tatiana Suskin v. State of Israel IsrSC 52(3) 289.
12. HCJ 14/86 Laor and Others v. The Council for Film Censorship and Others, IsrSC 41(1) 421.
13. CrimA 53/54 ESH”D Temporary Center for Transportation v. Attorney General, IsrSC 8 185.
14. CrimA 677/83 Borochov v. Yafet IsrSC 39(3)205, at p. 213, 218-219.
15. CrimA 506/89 Naim v. Rosen IsrSC 45(1)133.

Israeli District Court cases cited:

1. CrimA (J-m) 243/94 State of Israel v. Benyamin Kahane (not yet reported).
2. CrimC (J-m) 361/93 State of Israel v. Benyamin Kahane (not yet published).

American cases cited:

1. Schenck v. United States, 249 U.S. 47 (1919).
2. Whitney v. California, 274 U.S 357 (1927).
3. Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942).
4. Brandenburg v. Ohio, 395 U.S. 444 (1969).

Israeli books cited:

1. S.Z. Feller Foundations in Criminal Law (Volume 1, 5745-1984).
2. Itzhak Kugler Intent and the Law of Expectation in Criminal Law (1998).

Israeli articles cited:

1. Professor Kremnitzer and Khalid Ghanayim “Incitement not Sedition” (Israel Democracy Institute, 1997).
2. Alon Harel ‘Offenses which Limit the Freedom of Expression and the Test of Probability of Realization of the Damage: Renewed Thinking’ Mishpatim 30 (1999) 69.
3. Professor Kremnitzer’s article ‘The Elba Case: The Law of Incitement to Racism’ 30 Mishpatim (1999).

Foreign books cited:

1. J.F. Archbold Pleading, Evidence and Practice in Criminal Cases (London, 42^nd ed., by S. Mitchell and others, 1985).

Foreign articles cited:

1. Dean Ely, ‘Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis’, 88 Harv. L. Rev. 1482 (1975).
2. David R. Dow and R. Scott Shieldes, ‘Rethinking the Clear and Present Danger Test’, 73 Ind. L.J. 1217 (1998)].

JUDGMENT

Justice T. Or

1.  Further hearing in the judgment of the Supreme Court (President A.  Barak and Justices A. Goldberg and E. Mazza) dated March 2, 1998 in CA 6696/96 Benyamin Kahane v. State of Israel [1] (hereinafter: “the Kahane Judgment [1]”).  In the judgment Benyamin Kahane (hereinafter: “Kahane”) was acquitted of offenses based on sections 133 and 134(c), specified in Title A of Chapter H of the Penal Code 5737-1977 (hereinafter: “the Penal Code”) titled Sedition.  Two central issues are to be considered in this further hearing.  One deals with the characteristics of the protected value or values of the aggregate of alternatives in section 136, which defines “sedition”, and of subsection 136(4) in particular.  The second is the question of the presence of a probability test within sections 133 and 134(c).  The special importance of these issues stems from their implications for freedom of expression.  The offenses we are dealing with restrict this value via the criminal prohibition they establish.  These issues have ramifications on the scope of the deployment of these offenses, and thereby also have ramifications on the degree of infringement on freedom of expression.

2.  The issues will be presented by chapter headings in the following order: a. the factual background and the proceedings; b. the characteristics of the protected values in sections 133 and 134 and their interplay with the phrase “incite to rebellion” in section 136 overall (hereinafter: “the offense of treason”); c. identification of the specific protected value in section 136(d); d. the question of the presence of a probability test in the framework of articles 134 (c) and 133 of the Penal Code including the totality of issues entailed; e. the mental element required in articles 134 (c) and 133; f. the distinction between this case and CrFH  8613/96 Muhammad Yosef Jabarin v. State of Israel [2]; G. the result.

A. The Facts and the Proceedings

3.  In the course of the election campaign for the 13th Knesset, even before the list of “Kahane Lives” was disqualified from participating in the elections, Kahane, who was at the top of the list, distributed a pamphlet which stated as follows:

“Bomb Umm El Fahm!  Why is it that when Arabs came out of Umm El Fahm and slaughtered three soldiers – the government sent out to bomb the Hezbollah in Lebanon instead of bombing the hornets’ nest of Umm El Fahm

Why is it that every time a Jew is killed we shell Lebanon and not the hostile villages within the State of Israel?

For every attack in Israel -- bomb an Arab village – a nest of murderers in the State of Israel!

Only Kahane has the courage to speak the truth!

Give power to Kahane and he will take care of them.”

Kahane was indicted in the Magistrate’s Court in Jerusalem for distribution and possession of the pamphlet.  Kahane was charged with committing acts of sedition, an offense under section 133 of the Penal Code, and with possession of seditionary publications, an offense under section 134(c) of the law.  The Magistrate’s Court acquitted Kahane of both charges.  The appellant (hereinafter: “the State”) filed an appeal on the judgment to the District Court.  The District Court overturned the acquittal and convicted Kahane of the offenses which were attributed to him.  The applicant, after obtaining leave, filed an appeal to the Supreme Court.  In the Supreme Court (CA 6696/95[1]) Kahane was acquitted of these offenses by the majority opinions of President Barak and Justice Goldberg, as against the dissenting opinion of Justice Mazza.

On March 17, 1998, the state requested a further hearing as to two central issues that were decided in the Kahane Judgment [1].  The first deals with the characteristics of the protected value in the offense of sedition in general and in section 136(d) in particular.  The second deals with the question of the presence or absence of a probability test within the framework of sections 133 and 134 of the law

On July 17, 1998 Vice-President S. Levin determined that a further hearing on the Kahane Judgment [1] would take place. 

B. The Protected Value in the Offense of Sedition

4.  Section 136 of the law includes four different alternatives for defining the term to “incite to seditious acts”.  Despite the fact that Kahane was charged with offenses which relate only to the term “to incite to seditious acts” in section 136(4), conclusions were drawn in the Kahane Judgment [1] with implications for the characteristics of the protected value in the aggregate of alternatives listed in section 136.  I will, therefore, first discuss the question of the characteristics of the value or values protected in the offense of sedition.  After that, I will examine the status of these values relative to the value of freedom of speech.  Finally, I will relate to the scope of the deployment of the offense of sedition.

The Various Approaches

5.  Sections 133 and 134 of the Penal Code deal with acts of sedition and seditious publications respectively.   Section 136 defines sedition.  The section establishes that:

“For the purposes of this section, ‘to incite seditious acts’ is one of the following:

(1) To bring about hatred, contempt or disaffection against the state or its duly constituted administrative or judicial authorities;

(2) To incite or to provoke inhabitants of the State to attempt to procure otherwise than by lawful means the alteration of any matter established by law;

(3) To promote discontent or resentment among the inhabitants of the land;

(4) To promote feelings of strife and enmity between different segments of the population.”

In the Kahane Judgment [1] a difference of opinion arose as to the question, what is the value or values which are protected in the offense of sedition when integrated with the aggregate of alternatives in section 136 and section 136(4).   In particular, Justice Goldberg was of the opinion that the protected value in the offense of sedition is the structure of the regime and does not extend out over its values as well.  A number of reasons supported this opinion.  He clarified that this conclusion was strengthened by the legislative history.  Similarly, in his opinion, this is also the conclusion to be drawn from a review of the alternatives in section 136.  The provision of section 136(1) read together with section 136(2) strengthens the supposition that the protected value is the structure of the regime and not its values.  This also has ramifications for the construction of the rest of the alternatives, as it is to be presumed that the various alternatives that were established in the same statutory provision express various forms of harm to the same value, and not to other protected values.   The existence of the offense of incitement to racism which is established in section 144B of the Penal Code, an offense directed specifically at preventing harm to core values which are at the foundation of a democratic regime, enables this construction.   Furthermore, narrowing the offense of sedition to one protected value contributes to the clarity of the prohibiting norm, which is consistent with the logic of the principle of legality (for detailing of his reasons see paragraphs 13-15 of his judgment).

Justice Goldberg dismissed the State’s position, as it was presented at the time, from which the bundling of the stability of the regime and the core values which characterize it was inferred.  In his opinion, the argument that any call against the core values necessarily endangers the stability of the democratic regime is excessive.  He even dismissed a more qualified argument, which isolates the value of equality from other core values and bundles it with the stability of the regime, as in his opinion, such overlap is not obligatory.  According to him, triggering the offense of sedition would only be justified when the violation of equality melds with harm to the stability of the regime.

President Barak agreed with Justice Goldberg’s viewpoint on this matter.  He also is of the view that the offense of sedition is limited to endangering the order of the government and the regime and the protected value is prevention of harm to the stability of the regime (paragraph 11 of his judgment).

Unlike them, Justice Mazza, in a minority opinion, was of the opinion that the offense of sedition is not limited to protection of the structure of the democratic regime.  In his opinion, the protected value in section 136 extends out over the social values that are at the foundation of this regime.  He does not accept the differentiation between the structure of the regime and the basic social values at its core.  He dismisses this differentiation for two reasons.  First, unlike the first three alternatives of the section, which deal with activities directed at causing harm to government authorities, the provision of section 136(4) deals with activities that are not directed against governmental authorities, but against segments of the population.  Limiting the protected value to the structure of the government will deplete this provision of content.  Second, this differentiation is neither possible nor desirable.  If one seeks to protect the structure of the regime, its foundations must also be protected.  Putting the core values on which democracy is based in potential danger also endangers the structure of the regime.  In Justice Mazza’s opinion, the addition of the offenses relating to racism, do not detract from the scope of the span of the existing offenses (for detailing of his position see paragraphs 17-18 of his judgment).

As for Justice Goldberg’s determination according to which there is not necessarily overlap between harm to the structure of the regime and harm to the values of society, Justice Mazza comments that in his view, no link at all is needed between the harm to values and the harm to the structure of the regime, as they both are protected by the offense of sedition (see paragraph 19, Ibid.).

6.  The government’s position in the further hearing before us, as to the protected value in the offense of sedition, has changed direction somewhat relative to its original position at the time of the discussion in the Kahane Judgment [1].  Now it proposes a middle position that is found midway between the majority opinion and the dissenting opinion in the Kahane matter.  The State ostensibly joins the opinion of the majority in its approach according to which the protected value in the offense of sedition is indeed the “character of the democratic regime”.  However, the State is of the view that the content with which the majority filled this term, according to which the protection of the section spans only the structural and organizational arrangements of democracy is overly narrow.  According to the State’s view, it is appropriate that the protection afforded in section 136, including 136(4), extend out over the democratic character of the State of Israel both from the structural perspective and the value-content perspective.

What is the content of said “value-content perspective” with which the State seeks to fill the value protected in the offense of sedition?  The State proposes, on this matter, adopting the approach according to which it is not a matter of protection of the range of values which characterize a democratic regime.  It is a matter of the “hard nucleus” of those values, values which are of the “first degree” or “supra” values.  This position, by definition, raises the question as to what those values are which constitute the hard nucleus of democracy.  In this matter, the State does not take a position and throws in its lot with this court for it to determine what those “supra” values are which are protected by the offense of sedition.

If this is so, the issue that is before us is examination of the characteristics of the protected value in section 136 overall.  Whether, as the majority justices hold, the protected value that runs like a common thread through all the alternatives in the section is the structure of the regime, or whether the protected value is not exhausted by this purpose.  If the protected value in the offense of sedition is not exhausted by the structure of the regime, then what the value is or what the values are that are protected by it must be examined.

Is the Protected Value in Offenses of Sedition Only the Structure of the Regime?

7.  The view, according to which the protected value in section 136 is the structure of the regime, relies, inter alia, on the language of section 136.  Justice Goldberg, in this judgment, surveys the various alternatives in section 136 and his conclusion is that the provision of section 136(1), which in his view is the most pivotal alternative, also “radiates” on the manner of construction of the other alternatives in the section.  Since this alternative deals clearly with the structure of the regime, in his view, one is to infer from this as to the rest of the alternatives, as it is makes sense that the section is made up of “one piece” as to the value protects.

The Achilles’ heel of this argument is that it is not consistent with the phrasing of section 136.  The first alternative is indeed intended to protect the value of the structure of the regime.  However, the conclusion that the protected value in section 136 in the aggregate is the structure of the regime is further and further undermined the more we continue to survey the other alternatives in the section.  The second alternative is already not consistent with the conclusion according to which the exclusive value protected by it is the structure of the regime, since it deals with the alteration of “any matter established by law” and not necessarily the structure of the regime.  However, even if the second alternative can also be attributed to the structure of the regime, this is not the case as to the third and fourth alternatives.  These, according to their language, do not focus on the structure of the regime at all.  If so, from the plain reading of the alternatives in section 136 it arises that it is not made up of one piece.  While the protected value in the first alternative is the structure of the regime and its institutions, the other alternatives do not inherently tie in, on the basis of their language, to this value.

8.  Counsel for Kahane, advocate Golan, suggests that we learn about the content of the protected value from the use of the term “sedition” to describe the offense.  The accepted literal meaning of the term “to incite seditious acts” is to bring about an uprising against a governmental authority.  From here we learn that this term, in its regular meaning, relates only to the relationship between the citizen and the government.  Therefore, in his opinion, section 136 in the aggregate is to be construed in this vein.

This argument would be well-reasoned, if it were not for the fact that this term has been defined in the statute itself.  Once the term has been defined in the statute, the regular, literal meaning of the term is not be sought , but one is to adhere to the definition shaped by the legislator, even if it deviates from the regular meaning given to it.  Therefore, it would be appropriate that identifying the protected value in the offenses of sedition be done based on the definition of the term “sedition” in the law and not by its accepted dictionary definition.

9.  An additional argument which supports narrowing the protected value in section 136 exclusively to the structure of the government is tied to the overall legislative system.  According to this argument, the existence of the offense of incitement to racism, which is established in section 144B of the Penal Code, provides support for the position that this offense was intended exclusively for situations of instigating strife and enmity which are not related to undermining the stability of the regime, while the offenses of sedition were designated exclusively for activities whose aim is harm to the structure of government.

I do not accept this approach.  The existence of partial, or even full, overlap, among various offenses is not an extraordinary phenomenon in the criminal legislative system.  Therefore, I agree with my colleague, Justice Mazza, that it is certainly possible that there is a broad area of overlap between the offense of incitement to racism and the offenses of sedition.  Support for this approach can be found in the explanatory notes of the Proposed Penal Law (Amendment number 24) 5745-1985 (Hatzaot Hok 1728 of April 17, 1989 pps. 195-196) in which adding the offense of “incitement to racism” to the Penal Code was proposed.  According to the explanatory notes:

“The Penal Code 5737-1977 prohibits acts of sedition and seditious publications (sections 133 and 134); the term ‘incite to seditious acts’ includes ‘promoting strife and enmity among various segments of the population (section 136(4)) and can punish for expressions of incitement to racism.  As long as the phenomenon of incitement to racism was marginal, it was possible to make do with said provisions and with the provisions in the Prohibition against Defamation Law 5725-1965, and primarily the one dealing with defamation of the public.  However, once incitement to racism became a disturbing phenomenon, the educational need was created to amend the penal law and include within it a provision which explicitly prohibits the publication of incitement to violence . . . 

other countries have also legislated statutes in this area, taking into consideration the character and social structure of each country” (page 196) (emphases mine-T.A.).

From the above it can be inferred that the drafters of the law were of the opinion that the prohibition on incitement to racism does not narrow the scope of the offense of sedition, which includes within it incitement to racism.  The offense of incitement to racism is not to be construed as intended to exclude from the offense of sedition the totality of cases in which the harm is not exhausted by harm to the structure of the government.  In this matter my opinion is like the opinion of Justice D. Cheshin in the District Court, according to which the offense of sedition which relates to the alternative found in section 136(4) is broader in this context than the offense of incitement to racism, because its protection extends over causation of strife and enmity among segments of the population on the basis of difference which is not included within scope of the offense of incitement to racism, such as difference on the basis of ideological, sociological, sexual background and the like (see CrimA (J-m) 243/94 State of Israel v. Benyamin Kahane [16] paragraph 12 of the judgment.)

10.  We are not to learn from the above that a situation in which there is substantive overlap between various offenses is ideal.  The opposite is true.  This is the existing situation, but it is not the ideal situation.  The existing situation indicates the lack of a guiding hand geared to instituting maximum harmony in the penal legislative system in the subject area we are dealing with.  As to this and as with other words of criticism which I will discuss later, I join the approach of Professor Kremnitzer and Khalid Ghanayim in their article “Incitement not Sedition” [24] when they commented that:

“Given that the offense of incitement to racism is defined in the Penal Code as a separate and independent offense and that defamation of a segment of the population constitutes the criminal offense of defamation, it is imperative that we amend the offense of sedition and define the aggregate and overlapping relationships between this offense and other offenses in order to prevent disharmony among the offenses.” (Ibid. P. 7).

11.  As for the legislative history of the offense of sedition, Justice Goldberg holds, as stated, that it strengthens the supposition that the offense of sedition was not intended to protect the core values which characterize the regime.  He explains that in the Penal Code Ordinance 1936, the offense of sedition was placed within the chapter “Treason and other Offenses against the Ruling Authorities and Government.”  The title of the chapter was changed to “Harm to the Orders of Society and Regime” whereby addition of the segment “Society” was necessitated in light of the inclusion of additional titles in the chapter, in which harm to the social order is separate from harm to the order of the regime (see paragraph 13 of the judgment).  It thus appears that his conclusion is that the legislator of the mandate period, when it legislated the offense of sedition, intended to limit its application to protection of the structure of the regime only.  Justice Zilbertal, in the Magistrate Court’s judgment strengthens this conclusion in that he references English law, which fathered this offense.  The English case law limited the protected value in the offense of sedition to the structure of the regime (See CrimC (J-m) 361/93 State of Israel v. Benyamin Kahane [17] pp. 25-27 of the judgment).  Justice D. Cheshin, in the District Court, also presumed that from an historical perspective, it was indeed possible that the primary objective which the legislator in the mandate period had before him when he legislated the sedition sections was prevention of harm to the state government.  However, in his opinion, this was not necessarily the exclusive objective in legislating the statute.  In light of the sensitive social-political situation which existed at that time in the Land of Israel between the Jewish and Arab nations, it is possible to explain the provision of section 60(1) of the Penal Code Ordinance 1936, which is the source of the alternative specified in section 136(4), as a provision that was intended to prevent acts of strife and enmity between these populations, as an objective in and of itself.  I also agree with the words of Justice D. Cheshin, according to which when interpreting the offense of sedition against its legislative history, one is to focus on the conditions that existed in the land when it was legislated, more than on the conditions that existed in England, from where it was originally extracted.

12.  An additional argument which supports limiting the protected value to harm to the structure of the regime is based in the desire to minimize the violation of freedom of expression.  Limiting the protected value to the structure of the regime only, significantly reduces the deployment of the offense and the violation of freedom of expression is thereby significantly reduced.

Without ignoring the “supra” status of freedom of expression, the clearly understood need to protect this freedom does not indicate that to achieve this one may ignore the existence of competing values which occasionally clash with it.  The characteristics of the protected values in various statutory provisions, and in our case, the Penal Code, are determined by their purpose.  Protection of the special status of freedom of expression is expressed in the defenses and statutory conditions of the offense of sedition which limit the scope of its deployment.  These mechanisms reduce the violation of freedom of expression to the extent that is necessary, an extent that does not go beyond what is needed.  I will expand on this below.

13.  Finally, an additional argument which supports limiting the offense of sedition exclusively to harm to the structure of the regime relies on the principle of legality.  This principle, inter alia, seeks to prevent the creation of vague criminal prohibitions, and requires that the content of a criminal offense be coherent and clear.  It is clear that limiting the offense of sedition exclusively to one protected value contributes to the clarity of the proscribing norm, and is thereby consistent with the logic of the principle of legality.  It cannot be ignored that applying section 136 to the value content of the democratic regime as well may cloud the application of said prohibition.

Despite what has been said above, in my opinion, the claim regarding the principle of legality does not necessitate depleting from all content the values which the offense seeks to protect.  The means to be employed in this case should be clear definition of the protected value and delineation of the boundaries of its deployment.  In the words of Professor Feller:

 “When the language of the criminal norm is cloudy. . .   clarity and reasonableness is to be restored to the norm in accordance with the purpose of the norm. . .   as statutes were meant to be carried out not concealed.” (S.Z. Feller Foundations in Criminal Law (Volume 1, 5745-1984) [22] at p. 178.)

Indeed, the definition of the term “sedition” in section 136 is far from satisfactory.  This conclusion is magnified if we recall that the statutory sections dealing with sedition are meant to reflect a balance between the need to protect public peace and freedom of expression.  Against this background, it becomes necessary to adapt the offense of sedition, an offense that is an anachronistic relic from the Mandate period in the State, to the current reality of a state with a democratic character, in this matter it is appropriate to mention the words of my colleague President Barak, who commented on this in his opinion in the Kahane Case [1]:

“It is appropriate to weigh the repeal of the offense of sedition in our penal law and replacing it with an offense that is suited to our regime.  The phrasing of the statute is too vague and its boundaries are too broad.  It reflects a world view that is not democratic.  It suits a mandatory government which is not a government of the people, by the people, for the people.  It does not grant sufficient weight to freedom of expression.”  (Paragraph 13 of his judgment).

The President references in this matter the proposal of Kremnitzer and Ghanayim in their article supra [24], to replace the offense of sedition with a number of criminal prohibitions whose scope is narrow and which are more clearly defined.  Indeed, it is proper that the legislator weigh this proposal or other appropriate proposals.  However, as long as the offense of sedition stands as is, it is my opinion that the arguments that support limiting it exclusively to the structure of the regime are not convincing.  My position is that the offense of sedition does not protect this value alone.

The Other Values Protected in the Offense of Sedition

14.  The conclusion that the offense of sedition is not only limited to harm to the structure of the regime is not sufficient, we must explore and establish what the other value or values are which are protected in the framework of the offense of sedition and what is the area of the deployment of these values.  As said, Justice Mazza determined that the offense of sedition protects the values of the democratic regime.  As to this matter, the State suggests adopting the “hard nucleus” test, according to which only “supra” values of the democratic regime are to be drawn in to the offense of sedition while it leaves to this court the task of determining the “supra” principles that pass the threshold of the offense of sedition.

This position of the State has been subjected to piercing critique by advocate Golan, Kahane’s counsel.  He cautions that creating an umbrella offense that will encompass the substantive and primary values of a democratic regime, values that at the present time are not defined, may bring about the creation of a criminal prohibition which will apply to broad areas of public discourse in Israel.  It is his claim that the character of society in the State of Israel, a society replete with segments and schisms has led to a situation where the many and varied population groups who live in it are used to sharp and piercing public discourse.  His position is that this public discourse is not to be clouded by placing limitations on the freedom of expression, especially when the scope of these limitations is not clear.  Lack of clarity as to the extent of the limitations also contains harm to the principle of legality.

15.  It is a reasoned argument that the test proposed by the state for exposing the identity of the values protected by the offense of sedition is difficult as it requires that the court pick and choose from a “basket” of core principles that are at the foundation of the democratic regime – those principles that will be drawn into section 136.  Ostensibly, according to the State’s position, this sifting of principles is meant to take place apart from the language of section 136, and in reliance on a value “meter” that will be adopted by the court, according to which it will pick, choose, and determine which are the core values that belong to the “hard nucleus”.  I have difficulty with this approach.  In my opinion, the identity of the values protected by the offense of sedition is not determined in accordance with their classification as part of the hard nucleus of democratic rights in a democratic regime.  The identity of these values is to be determined according to what is said in the various alternatives specified in section 136, which express the intent of the legislator and its purpose.  In other words, the values protected by the offense of sedition are only those that are anchored in the alternatives of section 136.  The essence of the distinction between my approach and the State’s approach is clear: the State seeks to pick and choose the protected core values from a basket of existing core values, without this being anchored in the language of section 136, while according to my approach, choosing the protected core values will be undertaken in a concrete manner according to what is said in the various alternatives of the section.

16.  I am not disregarding the fact that this determination I have made does not contain enough to provide a clear definition of the values protected within the framework of the offense of sedition.  The language of the alternatives is not always sufficiently clear to enable clearly identifying the value which each alternative is to protect.  Moreover, as I commented above, at times, the protected value in these alternatives, according to their plain language, is not consistent with the democratic character of the regime.  Possibly the most blatant example of this is specified in section 136(3).  The term “to incite seditious acts” is defined in it as “to promote discontent or resentment among the inhabitants of the land”.  As Professors Kremnitzer and Ghanayim correctly comment in their article supra [24], discontent or resentment on their own, deal with emotions and feelings which belong to the purely internal realm which generally is an area the criminal law does not set foot in.  Moreover, discontent or resentment is not a negative situation that is necessarily to be avoided (see their article above, pp. 9-10).  We clarified above that this departure from the role of criminal law in a democratic state stems from the fact that the offense of sedition is a relic of the Mandatory Regime, which as is known, was not based on democratic principles.  As to the construction of statutes from this period it has been determined:

“Statutes which were born in the Mandate period. . .  had one interpretation in the Mandate period, and they had another interpretation after the establishment of the State, as the values of the State of Israel --  a Jewish, free and democratic state – are entirely different from the core values that the one in charge of the Mandate imposed in the land.  Our core values – in our days -- are the core values of a democratic rule-of-law state which strives for freedom and justice, these principles are the ones that will breathe life into the interpretation of these statutes or others.  This has been so since the establishment of the State, and certainly so following the Basic Law: Human Dignity and Liberty which bases itself on the values of the State of Israel as Jewish and Democratic state.” (HCJ 2722/92 Alamrin v. IDF Commander in Gaza Strip [3] at 705.)

(See also: HCJ 7351/95 Munier Navuani v. Minister of Religious Affairs and Others [4] at paragraph 35).

On this matter, my colleague the President said recently:

“The law melds with the new reality.  In this way old law speaks to the modern man.  From hence the interpretive approach that the law is ‘always speaking’ (see F. Bennion, Statutory Interpretation 686 (3rd ed. 1999)).  Interpretation is a renewing process.  Modern content is to be given to old language, in this way the gap is reduced between the law and life.   Against this background, it is appropriate to say, as Radbruch has said, that the interpreter may understand the law better than the maker of the law and the law is always wiser than its maker (see G. Radbruch, Legal Philosophy, The Legal Philosophy of Lask, Radbruch and Dabin 141 (1950)).  From here we have the accepted interpretive approach in England, according to which one is to give the law an updating interpretation.  (Bennion, Ibid., p. 686).  Indeed, the law is a living creature, interpretation must be dynamic.  It is to be understood in a manner that will integrate with and advance the modern reality (see A. Barak, Interpretation in Law, Vol. 2, Legislative Construction, (1993) at p. 264,603)”

(CA 2000/97, [5] LCA 4247/98, 4324/98, 4196/98 supra, paragraph 18).

In light of the above, determining the protected value in each of the alternatives is to be done according to what is stated in them, against the background of the reality of our times and taking into consideration the core values that are to be given appropriate weight in statutory construction.

Offenses of Sedition and their Status in Relation to Freedom of Expression           

Sections 133 and 134 of the law establish a criminal sanction for acts of sedition and seditious publications.  The provisions established in them thereby place limitations on freedom of expression.  All recognize the special status of freedom of expression in a democratic society.  As to the characteristics and breadth of scope of this freedom it was said in the case law of this court.

“In every society one finds a variety of differing views and opinions; in a free society the diversity is manifest, in a totalitarian society the diversity is masked and concealed. Exchange of opinions, clarification of views, public debate, the urge to know, learn and convince - all these are essential tools in the service of every opinion, view and belief in a free society. The act of classifying citizens and distinguishing between them, some of whom are granted rights and others not, contradicts the truth that underlies the freedoms and, in its theoretical essence, manifests the same internal contradiction as does a person who decries democracy while utilizing the rights it confers. Even with unpopular views and opinions must one contend and seek methods of persuasion. Prohibitions and restrictions are extreme devices of the last resort.”

 (President Shamgar EA 2, 3/84 Neiman v. Chairman of Election Committee for Eleventh Knesset [6]; emphasis mine-T.A.)

(See also HCJ 73, 87/53  Kol Ha’am Ltd. v. Minister of Interior [7]; HCJ 399/85 Kahane and Others v. Broadcasting Authority Management Board [8] at p. 280).

A difference of opinion arose among the judges as to the question whether freedom of expression also extends out over racist expression.  President Barak is of the opinion that freedom of expression in its “internal” sense, includes within it expression with racist-political content as well, which spreads strife and enmity among segments of the population (see HCJ 399/85 [8] Ibid. pp. 281-282, CrimA 2831/95 Rabbi Ido Elba  v. State of Israel [9] (hereinafter: “the Elba  case”, paragraph 4).  Justice Mazza thought otherwise (see his opinion in the Elba  case, paragraph 24).  In any event, even according to the approach that racist expression takes cover under the shade of the broad wings of freedom of expression in its “internal” sense, all recognize that there occasionally are other values which come up against the value of freedom of expression, and which may clash with it, and that under certain circumstances, their importance may override the interest that lies within it.

As to expressions of the type we are dealing with, difficult and extreme  expressions against segments of the population, it has been said by my colleague President Barak:

“The aberrant expression in this matter may harm the dignity of a group of people in our state and the feelings of people in it.  It may aim to undermine the social order, social tolerance and public peace.  It contains a contradiction to the essence and foundation of a democratic state, and the principle that applies in it of equality among people.  It contradicts our national character, our “I believe”. .  These harms can be gathered under the rubric of “social order”.  Indeed, the aberrant expression may harm the social order, as it may harm democracy, the security and peace of the public, the feelings and the dignity of members of the public, whether they are religious and moral feelings , or communal feelings, or other feelings.” (HCJ 399/85 [8] above, pp. 285-286).

The “aberrant expression”, as it is described by my colleague the President, may thus harm the values which crowd together under the rubric of harm to the public order, which our law protects:

“We have seen that the aberrant expression may harm the public order, which is none other than a system of values (democracy, public security and peace, human dignity and the feelings of the public). . .  Israeli law does not just defend freedom of expression, it defends an additional system of values, which are dear to its heart and reflect our “I believe”. . .  This conclusion is strengthened by the various provisions in our statutes.  Thus, for example, publication of something out of incitement to racism constitutes a criminal offense (section 144B (a) of the Penal Code 5737-1977) Harm to religious feelings (section 173 of the Penal Code) and publication of profanity (section 214 of the Penal Code) also constitute criminal offenses.  Indeed, alongside the protection of freedom of expression the Israeli law also protects a system of values which are folded into the ‘public order’.” (HCJ 399/85 [8] p. 286).

It is clear that offenses of sedition are counted among the criminal offenses that protect these values.  And the additional weight of protection of public order in the clash between it and the principle of freedom of expression has already been established more than once (see HCJ 2481/93 Yosef Dayan v. Commander Yehuda Wilk, Jerusalem District Commander [10] paragraph 211; CrimA 2831/95 [9] supra).  Giving preference is expressed in the fact that if there is a probability – at a level to be determined in accordance with the essence of the clashing interests – of harm to public order by  a certain expression, freedom of expression will be limited, to the extent that it endangers, at said level of probability, the public order.  Indeed, the real dilemma that stands before us, is in establishing the proper balancing formula between the scope of the deployment of the offenses of sedition on the one hand and the degree of protection of freedom of expression on the other.

Limitation on the Scope of the Deployment of the Offense of Sedition

19.  The offense of sedition, as the rest of the provisions which impose bounds and prohibitions which limit the freedom of expression, raises a concern of harm to this principle beyond that which is necessary.  We have also already mentioned the concern of harm to the principle of legality as well.  In light of these concerns, it is important to clarify that the limits of the deployment of the totality of the offenses of sedition are bounded via several limitations which will be mentioned below.

(A)  The offense of sedition is bounded by statutory limitations which limit its application.  My colleague Justice Mazza has explained these limitations at length in his opinion in the Kahane Case [1]  (paragraphs 12-15 of his opinion).  In summary, it is a matter of the defenses which are established in articles 135 and 138 of the Penal Code.  Section 138 which is entitled “Lawful Criticism and Propaganda” limits the offenses of sedition in the substantive realm.  It removes from the framework of the applicability of the offense of sedition an act, speech, or publication whose intention is one of those listed in its four alternatives.  Section 135 limits the offenses of sedition in the procedural realm in three ways.  First, criminal prosecution for offenses under sections 133 and 134 of the Penal Code cannot be begun except within six months of the day the offense was committed.  In accordance with the provision established in it as to offenses of sedition, a statute of limitations has been established of only half a year; second, prosecution for the offense of sedition requires the written consent of the Attorney General; third, a person is not to be convicted of the offense of sedition on the uncorroborated testimony of one witness.

My colleague Justice Mazza also discussed the limitations on the bounds of the deployment of the offense of sedition by the general provision of section 34Q of the law, which establishes the defense of de minimis.  This defense is applied when the court is of the opinion that in light of the quality of the acts, its circumstances, results and public interest, the act is of little worth.

Interim Summary

20.  Until now I have deliberated, generally, about the offense of sedition.  In the framework of the protected values in the offense of sedition, I have expressed my opinion, according to which the protected value in the offense of sedition is not limited to the structure of the regime alone, and that identifying the characteristics of the additional values protected by it must take place according to what is said in the various alternatives of section 136.  Similarly, I have discussed the balance that is needed between the values protected by the offense of sedition, being part of the values protected by the “public order” and the competing value of freedom of expression, in order to determine the scope of the deployment of the offense.  In addition, I have discussed, generally, the limitation on the scope of the deployment of the offense through the statutory defense specified in the statute, and the general provision of “de minimis”.

Identifying the Protected Value in Section 136(4)

21.  As said, the offense of sedition, as in the example of other offenses such as incitement to racism, harm to religious feelings and the like, is an offense which protects various values which take cover under the umbrella of the rubric of “public order.”  I will now turn to investigating what is the specific value protected by the offenses of sedition which are established in sections 133 and 134 of the Penal Code, where the alternative defining the term “to incite to seditious acts” relating to our matter is specified in section 136(4).  We will also note that the definition for the term “incite to seditious acts” in this alternative is:

“To promote feelings of strife and enmity between different segments of the population.”

It appears to me, that the value that lies at the basis of this alternative is ensuring the ability of different segments of the population in the State to live side by side in peace and security, a value which we shall term hereinafter: “social cohesiveness”.  The purpose of this value is ensuring the ability of population groups, which differ from one another in various and varied aspects, to live together under the roof of a single state.  Incitement which is directed against a population group on the basis of a racist or ideological background which incites enmity against it and calls for violence against it as a group, using violent means, constitutes a violation of the same value of social cohesiveness in the sense described.  Such incitement causes social polarization against a background of hatred and violence.  In extreme circumstances such incitement can entirely weaken the basic “glue” which connects the various segments of the population, and prevent the possibility of living together in the same state.

22.  The value of “social cohesiveness” according to the stated meaning is of particular importance against the background of a society with a varied social mosaic like the State of Israel, in which minorities, and members of various religious sects, live side by side and in which the differences between the various population groups that live in it are significant.  Its value is in ensuring the existence of a multi-cultural, pluralistic society, and in preventing the disintegration of the social fabric.  It is worth noting that ensuring and advancing this value is not the only legacy, nor even the natural one, of the criminal law.  The role of introducing tolerance, love, and good neighborliness between people, is clearly reserved for the educational and social systems which are meant to work perseveringly and persistently on the cultivation and absorption of these values in society.  However, the criminal law can also have a contribution in this area.  The criminal law may serve as a tool for handling the dark, polar potential, buried within a society with a heterogeneous social fabric.  In this context, its role is to deal with behaviors which plant hatred and violence among various segments of the population and which strive to sabotage the delicate fabric of relations between various population groups.

Such illegitimate behaviors may, in appropriate cases, take the form of verbal expressions that can, taking into account their content and circumstances, harm the said social cohesiveness.  The power and force of words is not to be disregarded.  Words can inflame urges and hatred and lead to violence and thereby undermine the basic cohesiveness of society.

23.  Indeed, public discourse in a democratic society is meant to be exposed, open and piercing.  However, even the openness of public discourse is to have boundaries placed on it.  In my opinion this is the context in which the proscriptions established in section 133 and 134 of the Penal Code, enter the picture, when integrated with the definition specified in section 136(4).  In this formulation, the role of these provisions is to establish the boundaries of freedom of expression in public discourse, and remove from the framework of this freedom, a publication that has the potential to promote strife and enmity among different segments of the population.  Public discourse, which is at the foundation of democracy, is not to be allowed to be turned into a double-edged sword, and to sabotage public order.  In a similar context, it was stated by my colleague, President Barak, in HCJ 399/85 [8] supra:

“Indeed, freedom of expression comes to protect democracy, but at times there is no escape from the conclusion that it may also harm it.  Such harm may occur when the expression is racist, and it brings with it harm to the feelings of the public, enmity which brings about disruption of the public peace, and similar harsh harms, which may stem from publication of racist expression.  An enlightened democracy seeks to protect itself from a cancer that seeks to destroy it.  Indeed, the democratic regime is ready to protect the freedom of expression, as long as freedom of expression protects democracy.  But where freedom of expression becomes an axe for harming democracy, there is no justification for democracy stretching out its neck for the one who will cut it off. . .” (Ibid. pp. 286-287) (Emphasis mine – T.A.).

Indeed, even open, piercing and harsh public discourse cannot be entirely unrestrained.  The sections which deal with acts of sedition along with the definition of sedition in section 136(4), are intended to place the limit on freedom of expression at the same point at which this freedom is likely – with a level of probability that will be determined as to this matter – to cause violence or plant hatred among the different segments of the population, hatred which may pull the rug out from under the possibility of living in unity.

24.  It is not a simple question, when does a harmful expression which is directed at a population group on the basis of a background of difference, contain a “harm” in the meaning of section 136(4)?  Is a condition for this that the expression contain potential for immediate violent acts, or perhaps is it sufficient that the expression arouses enmity and an easy climate for the outbreak of such acts?  Is it necessary that it be possible to tie the expression to expected acts of violence, in accordance with the appropriate level of probability (a separate topic which I will deal with below) or perhaps is it sufficient that there are  expressions which promote enmity toward a segment of the population or call for acts of violence against it, even if the probability does not exist that such violence will be undertaken soon, but the seeds of hatred and enmity are planted, which by their quality and type may lead in the future to such acts (for detailing of the different types of harms see: Alon Harel ‘Offenses which Limit the Freedom of Expression and the Test of Probability of Realization of the Damage: Renewed Thinking’ [25] at pp. 89-91).

The answer to this question will impact the balance established in the section between freedom of expression and the value protected in it.  We clarified above that freedom of expression retreats in the area over which the offense established in section 134(c) is deployed.  However, we commented that this determination does not spare the real dilemma and the accompanying disagreement which are tied in to the matter before us, which is the attempt to find the proper balance between the defense of the protected value in the section and freedom of expression.  The root of this dilemma is to be found in the concern that the criminal sanction established in section 134(c) will cut off at their source ideological disagreements and arguments whose possibility of taking place constitute the life force of democracy, this very same piercing “public debate” which constitutes a building block of a democratic regime.

My opinion is that a publication that seriously and in a clear language calls for violence toward a segment of the population can “promote hostility and enmity” within the meaning of the section, and buried within it is that same harm the section seeks to prevent.  This is so even if the publication does not call for immediate violence, but includes a general call for violence against that segment of the population.  Such a publication can lead to hatred and to creation of a social climate that may lead, ultimately, to an outbreak of violent acts.  Such a publication creates the potential for violence or contributes to such potential which may break out at a time over which the publisher has no control.

My conclusion, therefore, is that section 134(c), as with section 134 in its entirety, also protects against publications whose cumulative impact on the social climate is harsh, even if they do not have the potential to arouse immediate acts of violence, and they may bring on, because of the hostility and enmity which they arouse toward a segment of the population, acts of this type, with a timing that cannot be foreseen in advance.  The purpose of the section, therefore, includes the objective of cutting off at the outset, a process that may end, eventually, if not necessarily in an immediate manner, in violence.

Two emphases are to be added to this.

First, in order for an offense to materialize under section 134 in connection with section 136(4), it is necessary that the harm to the value of social cohesiveness in its said meaning have force.  In a heterogeneous society it is not possible to entirely prevent the existence of any tensions between different population groups.  These tensions are inherent to its very existence.  Therefore the phrase “to promote strife and enmity” is to be interpreted as referring to an expression whose impact on the social mesh between the various segments of the population is severe in the sense that it may lead to a deep social schism between the various segments of the population.  It is necessary, therefore, that the message be of the type of message that is able to arouse intense hatefulness or a call to violence.

Second, the attempt to minimize the damage of the violation of freedom of expression is also expressed in terms of the scope of the potential violation.  In our case, the expression “to incite to seditious acts” found in section 136(4) requires that the violation promote social polarization among various segments of the population.  From hence, that the protected interest in the offense we are dealing with is the interest of segments of the population and not the interests of one individual or another within those segments of the population.  Meaning, it is not sufficient that the statement include potential to promote hatred between one private person and another private person, against the background of his difference.  It is necessary that the statement promote the potential for hatred among segments of the population.

To summarize this point, in my opinion the general value which is protected in section 136(4), is the value of social cohesiveness in its described meaning, and in the framework of protection of this value, the provisions of sections 133 and 134(c) come to protect, inter alia, from incitement of strife and enmity among the various segments of the population.

C. The Question of the Presence and Quality of the Probability Test in Articles 134(c) and 133

26.  Is there a probability test in the framework of sections 133 and 134(c) of the Penal Code?   There was also disagreement regarding this question in the Kahane Case [1].  We will first discuss the question of the presence of such a test in section 134(c) and the quality of this test, and then the question of its presence in section 133.

The Probability Test in Section 134(c) – The Different Positions in the Kahane Case [1]

27.  Section 134(c) which is included among the offenses that deal with publications of a seditious nature establishes that:

“Whoever has in his possession, without legal justification, a publication of a seditious nature -- is liable to imprisonment for one year and the publication shall be confiscated.” (Emphasis mine – T.A.)

The section includes two factual foundations: the one, the conduct element – “whoever holds”, and the second the circumstantial element, “a publication of a seditious nature”.  The mental element in the offense is mens rea, meaning awareness of the physical quality of the conduct and awareness of the circumstantial element.

Among the justices deciding the Kahane Case [1] there was unanimity of opinion as to the classification of this offense as a conduct offense as opposed to a consequential offense (see paragraph 21 of the opinion of Justice Goldberg; paragraph 2 of the opinion of Justice Mazza; paragraph 3 of the opinion of the President).  It was further determined that the element of “of a seditious nature” is a circumstantial element (paragraph 21 of the opinion of Justice Goldberg; paragraph 4 of the opinion of Justice Mazza; paragraph 3 of the opinion of the President).  There is no difference of opinion on this.  The question which was subject to debate to which we will now turn is – is there a probability test within section 134(c), in the framework of the circumstantial element, and to the extent that there is,  what is its nature, and what is the degree of probability that is needed within its framework.

(A)  Justice Goldberg, who was of the opinion that the protected value in the offense of sedition is the structure of the regime, determined on this issue:

“from the determination we made above as to the high level of endurance of the public interest in the stability of the regime, it is necessary to raise the “bar” of the degree of the potential for sedition so that only a publication whose potential to incite to rebellion is real will be proscribed.  Since the  criminal process takes place retroactively, and the publication is in front of the court’s eyes, it does not need external probability tests, and it is within its grasp to determine if the said potential exists in the publication or not, according to its own assessment (HCJ 806/88 Golan Globus v. The Council for Review of Films and Plays, IsrSC 43(2) 22 at p. 41).  This assessment will take place, inter alia, based on its content, language, and context of the publication” (my emphasis- T.A.).

When Justice Goldberg applies the criterion determined by him above to the specific case before him he determines:

“The pamphlet under discussion contains slanderous statements against the Arab sector in Israel.  However, it is a long way from here to the statement that this infantile pamphlet has real potential for sedition, that is, that it poses a real danger to the structure of the democratic regime.  The nonsense in the pamphlet is not worthy of having such weight attributed to it, such that it might raise doubts as to the robustness of the democratic regime in Israel.”

(B)  Justice Mazza, according to whom the protected value in the section also includes the values of the ruling authority determines as to this matter:

“The phrase ‘of a seditious nature’ is directed at the content of the publication, and not at the level of probability that the publication will cause sedition.  It is to be noted the Justice Goldberg (as clarified in paragraph 22 of his opinion) also does not find it necessary to apply the probability test to the offense of publications of a seditious nature” (emphasis mine – T.A.).

On this matter, Justice Mazza reversed the position, which he expressed in obiter dicta in the Elba  case, according to which there must be a probability that the publication will promote strife among the various segments of the population, and determined that the offenses in accordance with the various alternatives of section 134 do not include a probability test (section 8, Ibid.).

(C)  President Barak, who agreed with the opinion of Justice Goldberg as to the protected value, makes this determination as to the requirement of a probability test:

“My starting point is that the wording ‘of a …. nature’ points to the weight of the things that were published.  This weight is determined relative to their power to bring about an actualization of the sedition. . .  It is a matter therefore of a probability requirement. . .  It is necessary therefore that the things that were published will have sufficient weight to impact the actualization of the sedition. . .  This weight reflects the power of the words to bring about the proscribed conduct.  It reflects the impact potential that the content of the publication has on the sedition” (emphasis mine – T.A.).

Once the President determined that the sections apply a probability test, he turned to examine the level of probability required.  He clarifies that this question comes up since the need is created to balance between the value of freedom of expression and the value of public peace, and the key question is what is the appropriate balance in this clash (paragraph 4 of his opinion).  After weighing the conflicting values he determines:

“After a difficult internal struggle, I have reached the conclusion that it is appropriate to adopt the reasonable (or actual) probability test.  That, so it appears to me, is also the test that my colleague, Justice Goldberg, adopts.  I would not adopt this test, were I to have given “sedition” a broader meaning as does Justice Mazza.  As opposed to this, my approach – which joins with the approach of my colleague, Justice Goldberg, narrows sedition to endangerment of the order of government and the regime, and sees in it harm to the stability of the regime.  In this narrow area it is appropriate to give effective protection to public peace.  Such protection is given via the test of reasonable (or actual) probability.  Indeed, the interest worthy of protection is so important and weighty, that there is justification to infringe on freedom of expression if there is a reasonable probability of harm to this interest” (paragraph 11, Ibid.).

In relating to the criteria that were established by his fellow judges in the discussion as to the circumstantial element of “of a seditious nature” the President remarks that in his opinion they too undertake a probability test.  The test of Justice Goldberg, which examines if the potential for sedition is actual, according to the content of the publication on the day of publication, is a probability test in terms of its substance, even if Justice Goldberg does not title it as such.  Justice Mazza’s approach can also be catalogued, according to the President, in the framework of the probability test.  The difference between his approach and the approach of Justice Mazza lies in the degree of probability required.  Justice Mazza makes do with a “tendency” of the publication to bring about sedition (“the negative propensity” test).

When applying the criterion that he established to the publication that was before him, the President agreed with the opinion of Justice Goldberg that possessing the publication does not create an actual danger of sedition (paragraph 14 of his opinion).  It is to be noted, despite the fact that the President used the wording possession of the publication, it is clear that he was referring to the fact that under the circumstances it is not to be presumed that the content of the publication is likely, at the level of reasonable possibility, to impact the robustness of the structure of the regime.

Rationales for the Presence of the Probability Test in Section 134(c)

28.  I am of the opinion that section 134(c) includes within it a proportionality test in the framework of the circumstantial element.  The presence of the proportionality test is well anchored in the literal language of the section.  The phrase “of a . . .  nature” indicates the presence of this test.  Denial of the presence of the proportionality test in the framework of the section in practice depletes it of its content.  Indeed, in similar circumstances when the court was to interpret a phrase whose language indicated the presence of a proportionality test, such as  “is likely to” or “may cause harm” the court assumed the presence of a probability test, and focused its discussion on weighing the degree of proportionality needed for the occurrence of the infringement of the protected value (see HCJ 73/53; 87/53 [9] supra at p. 882 between the letter E and F, as well as CrimA 697/98 Tatiana Suskin v. State of Israel [11] paragraph 22).

The presence of a proportionality test in the framework of section 134(c) is also supported by the provision of section 34U, which is the anchor for purposive construction in criminal law.  The section establishes that:

“Where a law is open to several interpretations based on its purpose, the matter will be resolved according to the interpretation which is more lenient with the person who is to bear criminal liability based on that law.”

Even if our baseline is that it is possible to interpret section 134(c) – as one of the possible explanations – in a manner that denies the existence of the probability test, then according to section 34U we are directed to prefer the interpretation which protects the liberty of the defendant more broadly, meaning the interpretation which requires the presence of a probability test.  All the more so, when the interpretation that is more lenient with the defendant reflects the simple literal version of the section. 

29.  The State in its arguments raises the concern that application of the proportionality test will place the burden of proof on its shoulders, and it is unlikely to be able to meet it.  The state further questions how the prosecution will lift the burden, proving beyond a reasonable doubt, possible influence in the mental realm of the prohibited statement on any given listener?  The answer to this is that testing the probability of the sedition will be done according to the circumstances of each case.  It will not always be possible to collect the full data for examining the probability just from the content of the publication itself.  At times, there is importance to the public atmosphere in which the act of publication took place, the location of the publication and its timing, and who the public is that is exposed to the publication.  All these may demonstrate the probability that the publication will constitute sedition in the sense of section 136(4).

It is also important to emphasize the difference between the existence of the probability test and the question of the burden of proof that is necessary in each and every case.  The probability test examines the existence of potential for harm in accordance with the strength of the probability determined for this harm.  The difficulty in proving the said potential in one specific case or another is dependent on the circumstances of each case in itself.  The probability test checks for the existence of potential for harm based on the strength of the probability determined for such harm.  The difficulty in proving the potential in one case or another is dependent on the circumstances of the case itself.  There is no need to “enter” the mind or the heart of the public in order to conclude the effect that the content of one publication or another created in actuality.  The court will reach its conclusions in this matter out of the totality of existing circumstances.  Applying the proportionality test also does not require, necessarily, reliance on external evidence beyond the content of the publication and the circumstances of the publication.  At times, the determination can be made based on the assessment by the court of the content of the publication alone, relying on judicial knowledge and experience.  When the court examines the publication, it will weigh and decide what the possible ramifications are of the publication on a specific public or publics, with an effort to draw out of the publication and its circumstances an answer to the question whether the publication has the power to achieve the worthless objective.  Therefore, there is not much substance to the concern, expressed by the State, that applying the proportionality test will impose on the prosecution, a heavy burden of proving actual influence of the publication on a given individual or given public, and that this would not enable, or would make it very difficult, to prove criminal liability.  In its essence the proportionality test is a test of logic and common sense.  The manner in which the test is applied is no different than the manner in which the court operates in other subjects on a daily basis, including in the realm of criminal law.  There are circumstances, in particular in cases in which the content of the expression is particularly harmful, in which the court will easily conclude the existence of potential for harm from the publication itself.  On the other hand, there may be circumstances in which the task of proof is more complex, and it is possible that in special cases, the need will arise to turn to expert opinions.

I had the opportunity to relate to a similar issue in CrimA 697/98 [11] supra.  In that case, inter alia, the offense, under section 173 of the Penal Code, of harm to religious feelings was under consideration, and the question of determining the potential for harm to feelings arose.  That matter raises the same difficulty which the State presents, as in that offense it was clearly necessary to examine the potential for harm.  As to the question of evidence required to prove harm to religious feelings and its force I expressed my view that:

“In assessing the latent potential in a publication, the court will look to the totality of circumstances which impact its possible effect.  It is a matter of assessing the possible operation of the concrete publication, when it is done.  First and foremost the court will look to the content of the publication both in terms of its meaning, and in terms of its style.  The court will also look to the circumstances surrounding the case – what is the medium used, what is the target audience, where was the publication made, and when was it made.  There may also be non-negligible importance, in this context, to the question whether the audience is a ‘captive audience’. Against the background of all this, it is possible to determine, whether the publication has actual potential for egregious harm to religious feelings (compare, on this matter, the words of Justice E. Goldberg, in paragraph 22, in his opinion in the Kahane Case [1].)

It is true, it will not always be possible to make a finding – positive or negative – as to the harm hidden in a certain publication.  In cases which are not clear on their face, it is possible to prove the latent harm in the publication using expert testimony.  Looking to such testimony may be desirable, for example, when there may be doubt as to the meaning of the publication, its content or potential latent effect. . .” (Paragraphs 23-24 of the judgment).

My conclusion is, therefore, that the presence of the proportionality test is well anchored in the language and purpose of section 134(c).

Does Section 133 Contain within it a Proportionality Test

30.  Section 133 establishes:

The offense under section 133 of the Penal Code is also a conduct offense.  The question that is being tested here is whether the factual element of the offense, “whoever does an act” contains within it a proportionality test.

It will be noted that Justice Goldberg was of the opinion the conduct component of section 133 is to be interpreted such that publication, possession and import, to which section 134 applies, were taken out  of the definition of “act” under this section (see paragraph 20 of his opinion).  This position was not agreed to by the President and Justice Mazza (see paragraphs 4-6 of the opinion of Justice Mazza and paragraphs 17-22 of the opinion of the President).  However, they disagreed as to the interpretation of this section, a disagreement whose roots were already exposed in the Elba  case.  The factual element in section 133 is phrased in a brief and laconic manner- “whoever does an act”.  Justice Mazza was of the opinion, as per his approach in the Elba  case that “section 133 does not include any requirement relative to the character of the act” (paragraph 4 of his opinion).  On the other hand the President, in continuation of the same path he delineated in the Elba  case, was of the opinion that it would be appropriate to interpret this element as containing within it the requirement that the quality of the act, on the basis of its context, will arouse sedition.  Beyond this, it is necessary that the act is of sufficient weight to influence the actualization of the sedition.  From hence, that in the framework of the factual element in section 133 it is necessary that the act of sedition can, as a reasonable possibility, bring about sedition.  In this context the President reiterated and quoted his position in the Elba  case.

“Imposing liability for an innocent statement which is accompanied by a goal of inciting to racism, comes dangerously close to violating the rule that does not allow prohibiting matters that are in one’s thoughts (nullum crimen sine actu).  In a democratic state, which seeks to grant the individual liberty to think as he desires – whatever those desires may be, and however difficult the thoughts may be – is not to impose liability on the thinker if he expresses his thoughts in an utterance that is innocent in and of itself’ (my judgment in the Elba  case, paragraph 3)  Moreover, infringement on freedom of expression just due to criminal thought that accompanies an innocent act, is an infringement on freedom of expression that goes beyond the degree necessary for protection of the values of the regime.  Indeed, the approach according to which a very innocent expression which is accompanied by an illegitimate goal is illegal violates freedom of expression beyond the degree necessary (see Elba  case, paragraph 4)” (paragraph 18 of his judgment in the Kahane matter.  (See also Professor Kremnitzer’s article ‘The Elba  Case: The Law of Incitement to Racism’  [26] 105, pp. 112-113).”

On this topic of the construction of section 133, I agree with the view of the President and his rationales that section 133 includes within it a probability component.

The Degree of Probability Required

31.  After determining the existence of the probability test in the framework of sections 133 and 134(c), there remains for further discussion the issue of the probability threshold required for the purpose of limiting expression.   This threshold also influences the balance between the value of freedom of expression and the value protected by the section.

The framework of doubt is as to the question whether to adopt the stringent test of “near certainty,” in our case or the more lenient test, of the reasonable or actual possibility.  The ideological foundation for the application of the test of near certainty was laid by Justice Agranat in the Kol Ha’am case (HCJ 87/53; 73/53 [9] supra).  In that case this test was determined as the test which reflects the proper balance between freedom of expression and other competing values.  However, the near certainty test does not constitute the only proportionality measure used when the value of freedom of expression is being weighed.  When it is assessed that the value that is being weighed against freedom of expression is one of the values of the “first degree” the test that is used is the reasonable or actual probability test (see for example, the President’s judgment in the Kahane Case [1] as to the value of the structure of the regime, paragraph 10, Ibid.).  As to determining the degree of probability needed, the approach is therefore accepted, according to which it is desirable for there to be an inverse relationship between the importance of the protected interest and the level of probability required.  The higher the protected social value ranks on the ladder of importance, so too the degree of potential required for the realization of the harm is to be moderated and vice versa.

In this matter, my tendency is to adopt the test of near certainty.  Two primary reasons lead me to lean in this direction.  First, it appears to me that it is appropriate to balance the harm to freedom of expression that is created as a result of the definition of the type of the harm in offenses of sedition as including harm which is not followed by immediate violence, by establishing the rigid threshold of a degree of near certainty.  Second, the degree of near certainty is accepted in case law as the proper balancing formula for the values that clash in our matter, the freedom of expression on the one hand and the public order on the other.  From hence, determining this criterion, in the case before us as well, advances the normative harmony that we are to persevere in cultivating.  However, in the circumstances of the present case, there is no need to make a determination on this issue.  As I will detail below, my view is that the publication we are dealing with also meets the more stringent probability test of “near certainty”.   Therefore, in our case, I will apply the near certainty test, while leaving the determination as to the issue of the probability threshold for a case in which it is necessary.

D. The Mental Element in Articles 134(c) and 133.

32.  The mental element in the offenses we are dealing with is not up for discussion in the framework of this further hearing.  Therefore, I will relate briefly to this issue, in connection with each of the offenses under discussion.

Section 134(c) does not explicitly establish a mental element.  Under such circumstances, mens rea is required (section 19 of the Penal Code).  Under section 20(a) of the Penal Code, in a conduct offense of the type we are dealing with, the required mental element is of awareness (in fact) to the quality of the act and the existence of the circumstances.  In our matter, there is thus required awareness of possession of the publication; awareness of the publication itself; awareness that possessing the publication will, with near certainty, cause sedition.  In this matter, it was determined by Justice D. Cheshin in the District Court that Kahane was aware of the nature of his conduct and its circumstances.  There is no basis, and we have not been asked, to intervene in that conclusion.  From hence, that as to this matter, it is proper to adopt the determination of the District Court.

The mental element required in the framework of section 133 for the offense of sedition, is a special result (“for the purpose of sedition”)  Specific mens rea is required whose content is the desire or aspiration for achieving the aim.  In the District Court it was determined that Kahane was aware of the nature of his actions, meaning the potential for incitement to racism in the pamphlet and that he wanted the realization of the aim in the result, i.e., to arouse feelings of hatred toward the Arab public.  In the appeal it was also determined that the mental element was fulfilled in this case.  From here that in the matter of the existence of the mental element required in section 133 the determination of the District Court stands, which was also accepted by this court in the Kahane Case [1].

E. From the General to the Specific

33.  At this stage, it remains for us to examine, whether in point of fact, the publication we are dealing with is within the prohibition established in articles 134(c) and 133.  Following the analysis we have conducted so far, the question which must be answered is, whether the said publication, which calls for acts of violence against the Arab population, may, at the probability level of “near certainty” plant deep feelings of enmity toward the population against whom it is directed and incite acts of violence toward it.

In paragraph 3 above I brought the wording of the pamphlet Kahane had in his possession.  It is easy to see that it contains a message soaked in explicit and harsh violence.  It calls for the bombing of Arab villages found within the territory of the State of Israel.  It refers to the Arab population, in its totality, as a fifth column.  Thereby it opens them up to attack.  There can be no argument that it contains within it a general call to violence, without distinction, against the Arabs of Israel.

This expression did not stand alone.  It is to be remembered that it constituted part of the campaign of Kahane’s party before it was disqualified from participating in the Knesset elections.  The expression in this pamphlet was not a one-time expression, but part of a well-planned network  of expressions which were intended to plant the seeds of calamity that contain within them potential for creating a deep social schism between the Arab population and the Jewish population in Israel.

From the content of the pamphlet one can learn that it is directed at the totality of the Jewish population.  From hence, that it is intended to ingrain within this population, or a portion of it, intense enmity toward another population, the Arab population.

34.  Does this pamphlet, and others like it, have the potential to influence the consciousness of the Jewish population exposed to it?  The near certainty test as to the actualization of the harm is measured based on existing reality.  It is a matter of a dynamic test which is applied against the background of the character of the society, or relevant groups within it, according to its situation when it is applied (see HCJ 14/86 Laor and Others v. The Council for Film Censorship and Others [12] at p. 443).  Occasionally there may be disagreements as to society’s strength to bear freedom of expression, without the matter bringing after it the potential, at the level of near certainty, for the realization of the protected harm.

Justice Mazza who objected to narrowing the protected value to the structure of the regime, and saw before him broader social values, asks in his judgment that we not be trapped in complacency.  In his piercing words on this topic he states:

“. . .  Indeed, the star of the democratic process has shone on the State from its first days and its light has continued to brighten.  But the continuation of this blessed process, which is certainly the desire of anyone who is a loyal citizen and a decent person, is not lacking in risks.   The first signs of the existence of anti-democratic streams in Israeli society were evident, with the appearance of Kahanism, about twenty years ago, and within several years their strength grew.  The legislator and the court coming through has possibly led to a slowing down of the spread of the phenomenon.  But the phenomenon, even if it was slowed down, has yet to disappear from our lives.  Bitter enemies have risen against Israeli democracy from within.  One of these massacred tens of Muslim worshippers during their prayer.  Another murdered the Prime Minister of Israel.  Signs of bearers of evil such as these are not to be permitted to weaken our faith in our moral strength as a free society.  But we are also not to ignore their existence. . .

There were times in which we could place our faith in the inner strength of our democracy, and were not required to defend it with legal means.   But the days are no longer as they were. . .

Times have changed and the bad winds which blow within us are more than passing winds of the moment that the court, in its way, tends to ignore (paragraph 21-22 of his opinion).”

Indeed, some of the worst of the angry prophecies have been realized and have become reality.  Innocent Arab workers, seeking to make a living for their households, have been shot at waiting and gathering points.  Arab worshippers have been murdered while still bowed in prayer.  The Prime Minister was murdered.  It is not possible therefore to accept that expressions that contain within them a violent message, such as the expression we are dealing with, do not permeate the public consciousness, bring on enmity and severely sabotage the mesh of relationships between Jews and Arabs.  Indeed, the influence of these pamphlets is primarily on extreme marginal groups, where they and individuals within them may, a result of these publications, achieve actual acts of violence.  But this is not sufficient to rule out the criminal character of the expressions.

35.  In conclusion, the pamphlets seized in the offices of Kahane were part of a well planned campaign whose goal was clear: to ingrain a feeling of hatred in the Jewish population toward the Arab population.  The expression in said pamphlet was not a one-time expression but part of a well-planned campaign of expressions intended to create a deep social schism between the Jewish and Arab populations.  The cumulative effect of the content of these expression, is likely, at the level of near certainty, to contribute to the fanning of the flames of hatred among portions of the Jewish population toward the Arab population in Israel and, as a consequence, also to acts of violence.  As for myself, I find it difficult to see the said pamphlet as an infantile pamphlet that is to be taken out of the framework of the criminal realm.

F.  What of Kahane Compared to Jabarin

In CrFH 8613/96 Mohammad Joseph  v. State of Israel [2] my view was that the applicant (hereinafter: “Jabarin”) was to be acquitted of his conviction in an offense under section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 (hereinafter: “Terrorism Prevention Ordinance”).  The subject of the conviction was an article that Jabarin published during the period of the Intifada which included words of praise for throwing stones and throwing Molotov Cocktails.  There is no doubt that this article contained a violent and dangerous message.  In light of what has been said, the question arises, what is the reasoning behind the different results I reached in the two cases?  The answer to this is that the difference between the two cases lies in the different offenses with which Kahane and Jabarin were charged.  As said, in CrFH 8613/96 [2], Jabarin was charged with an offense under section 4(a) of the Terrorism Prevention Ordinance, while in our matter, Kahane was charged with sedition.  The purpose of each of these offenses is different.

In CrFH 8613/96 [2] I analyzed at length the purpose of section 4(a) of the Terrorism Prevention Ordinance, and I will make do here with highlights of those words.  This section, when read apart from the ordinance in which it is specified and the historical background for its legislation is a draconian section that is difficult to accept in a civilized democratic society to which freedom of expression is dear.   The section does not include a probability test which ties the publication to the potential for realization of any harm.  It grants a presumption of dangerousness to any publication that enters its framework.  Thereby, it severely infringes on freedom of expression.  As was argued in that matter, the offense established in section 4(a) of the ordinance also covers, based on its language, a publication which praises, for example, the Bar Kochba Revolt, as such a publication includes praise for acts of violence which may (the actions of violence) cause the death or harm of a person.  After I examined the ordinance in its totality, and section 4 and the aggregate of its alternatives and the historical background of the ordinance, I reached the overall conclusion there that the unusual severity of the sections can be explained against the background of its purpose, as it is reflected by these sources.  This purpose was and remains to fight against the foundations of terrorist organizations.  On this matter I wrote.

“. . . The prohibition specified in section 4(a), as the rest of the prohibitions in the Ordinance, was intended to defeat the foundation of terrorist organizations.  Against the background of the special severity of this risk, the legislator was of the view that it would be proper to go even further and to also consider publication of praise for violent acts of a terrorist organization as an offense, even if they were done in the past, and even if the publisher of the words of praise is not a member of such an organization himself and does not pose a danger himself.  Moreover, and this is to be emphasized, the section does not require the existence of potential for the realization of any harm as a result of the publication.  One can become accustomed to such a prohibition in a democratic society, although it contains a significant infringement on freedom of expression, when we are dealing with terrorist organizations, with the great and unique risk they embody..”  (Paragraph 9 of my judgment).

Application of this conclusion to Jabarin’s article led to the conclusion that his actions were directed to the overall public and not to terrorist organizations.  Therefore, Jabarin was acquitted of the offense established in section 4(a) of the Ordinance.  It should be noted that the discussion of this matter took place in the framework of a further hearing, and the question was not examined there whether Jabarin’s actions constitute an offense according to another statutory section.

On the other hand, Kahane was charged with the offense of sedition according to the alternative established in section 134(4) of the Penal Code.  This offense was analyzed by me at length above.  Its purpose is to enable the continued existence of Israeli society, with all the many and varied population groups which live within it.  As said, the offense of sedition includes statutory limitations on the extent of its deployment.  So too, the scope of its application is limited both by the requirement of a harm of significant magnitude and in the narrowing of the extent of its application.  Moreover, it contains within it a probability test.  Application of the elements of the offense on said case, leads to the conclusion that Kahane is to be convicted of this offense.

In conclusion, the offenses with which Kahane and Jabarin were charged are different from one another in the elements of the offense and the values which every offense comes to protect.  Under these circumstances, there is no room for analogy between the two cases.  Every case is considered according to the elements of the specific offense which was attributed to the accused, while examining whether those elements were proven.

F. The Result

The result of all of the above is that if my view is to be heard, the result of this appeal would be changed and the conviction of Kahane in the offenses under sections 133 and 134(c) of the Penal Code, as the District Court decided, would be upheld.

After convicting the respondent, the District Court ordered the return of the case to the Magistrate’s Court for sentencing.  On February 27, 1995, the Magistrate’s Court sentenced Kahane to 16 months imprisonment, of which four months are of actual imprisonment and the remainder on probation, when the terms of probation are that he not commit an offense under sections 133 or 134 of the Penal Code for a period of three years from the day the sentence is handed down.  In the State’s arguments before us it was emphasized that in light of the time that has passed and the course of the criminal proceedings to date, the State no longer has an interest in the portion of the sentence which imposes imprisonment on the respondent.  In consideration of the length of time that has passed since the criminal proceedings were initiated against the respondent and the position of the State, my suggestion is that the sentence be changed such that the sentence of imprisonment imposed on the respondent will be cancelled and the probationary portion of the sentence will remain as is.

President A.  Barak

1.  I have studied the opinion of my colleague Justice Or.   I have gone back and studied my opinion in the criminal appeal the subject of this further hearing (CrimA 6696/96 Kahane v. State of Israel [1] (hereinafter: “the Kahane Case” [1]).  I have reached the conclusion that there is no room for a change in my position.  I am of the view, as was Justice Goldberg in the criminal appeal, that the offense of sedition by its very essence is limited to endangering the order of government and law, and that the value protected in it is the prevention of harm to the stability of the regime.  This position is strengthened in light of the opinion of my colleague, Justice Or in CrimFH 8613/96 Jabarin v. State of Israel [2] (hereinafter: “the Jabarin case”).  Here as there, a restrictive approach to the broad language of the statute is called for, in order for the interpretation of the statute to be consistent with the basic premises of Israeli democracy, including freedom of expression and the principle of legality.  Just as in the Jabarin case, here too the approach that is called for is that harmful speech alone is not sufficient, and that an additional element is required in order to transform the harmful speech into a criminal offense (compare to a similar approach in CrimA 53/54 ESH”D Temporary Center for Transportation v. Attorney General [13] in which Justice Silberg held that a “public mishap” (section 198 of the Penal Code 5737-1977) means a mishap to the public by public authorities).  In the Jabarin case the additional element was expressed in that the harmful speech (“praise, sympathy, or encouragement of acts of violence”) is to encourage acts of violence of a terrorist organization.  In the matter before us, it is necessary that the harmful speech (“to promote strife and enmity among different segments of the population”) will endanger the orders of government and law.  I am, of course, aware of the fact that in the Jabarin case section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 was under consideration, while in the Kahane Case [1] before us section 134(4) of the Penal Code is under consideration.  Despite the difference in the wording of the two sections, they raise similar problems of construction, and justify utilizing a similar technique of construction.  For myself, it appears to me that the Kahane Case [1] before us is even “stronger” – in terms of the ability to restrict harmful speech – than the Jabarin case, as the statement “to incite to seditious acts” when it is interpreted against the background of the legislative history and the foundational values of the system, radiates from within it an act of rebellion which endangers the orders of government and law and points to the fact that the protected value is preventing harm to the stability of the regime.

2.  In the Kahane Case [1] I discussed the factual element in an offense under section 134(c) of the Penal Code, which establishes that:

“Whoever has in his possession, without legal justification, a publication of a seditious nature, -- is liable to imprisonment for one year and the publication shall be confiscated.”

I noted that the statement “of a . . . nature” points to the weight of what was published.  This weight is determined relative to its potential to bring about realization of the sedition (Ibid. p. 579).  We find that we are dealing with a probability requirement.  I added that there exist substantial reasons for favoring the near certainty test (Ibid. p. 581), despite this I determined that in the overall balance the more lenient test of reasonable (or actual) possibility is to be adopted.  In explaining this approach I noted that “I would not adopt this test, were I to have given ‘sedition’ a broader meaning” (Ibid. p. 582).  I added that it was possible to turn to the less stringent test of “reasonable probability” because the circumstantial element of the “sedition” was narrowed to sedition which endangers the orders of government and law, and which harms the stability of the regime.  The view of the majority in this further hearing is that, it is not appropriate to narrow the statement “sedition” as suggested by the majority in the criminal appeal.  Against this background, I agree with the tendency of my colleague Justice Or that the proper proportional test is that of near certainty.  In my view, this test is not met in the circumstances of the case before us.  The probability that Kahane’s publication -- which calls for the bombing of Arab villages – indeed will bring about strife and enmity between various segments of the population (even without the requirement that such strife and enmity will bring about endangerment of the orders of government and law) is, against the background of its occurrence – distant and not real (it constitutes just a “bad tendency” in the words of Justice Agranat in HCJ 73/53 Kol Ha’am v. Minister of the Interior [7]).  And note: I am not of the view that words of this type will always be distant and not real.  It all depends on the circumstances of the time and the hour.  The circumstances of the publication of Kahane’s words in the time and place, in which they were published, do not create a risk at a level of near certainty or of reasonable and real possibility of the realization of the risk.

If my opinion were heard, we would dismiss this further hearing.

Vice-President S. Levin

I agree with the opinion of my hon. colleague Justice Or.  In light of his reasoning I do not see a need to express an opinion whether section 133 of the Penal Code 5737-1977 includes within it a probability element, and if so what is the degree of probability which is required.  My agreement here is subject to what has been said in my opinion in CrimFH 8613/96 [2] that was written in that case.

Justice Y. Kedmi

I accept the position of my colleague Justice Or according to which:

(A)  First – “the protected value in the offense of sedition is not limited to the protection of the structure of the regime alone.”

(B)  Second – “the protected value that lies at the basis of the alternative that defines the term sedition is ensuring the ability of different segments of the population in the State to live side by side in peace and security, a value which we shall term hereinafter: “social cohesiveness.” 

(C)  Third – “a publication, that seriously and in clear language calls for violence toward a segment of the population can arouse hostility and enmity within the meaning of the section (section 134(c) of the Law Y.K.) and buried within it is that same harm the section seeks to prevent.”

(D)  And fourth – that “in the framework of protection of this value (the value of social cohesiveness – Y.K.)  the provisions of sections 133 and 134(c) come to protect, inter alia, from incitement of hostility and enmity among the various segments of the population.”

2.  As for the probability test, which according to my colleague’s view is latent in the “character” of the publication that is subject to the prohibition in articles 134(c) and 133 of the Law, I accept the position presented in the appeal by my colleague Justice Mazza, according to which: “… The phrase ‘of a seditious nature’ is directed at the content of the publication, and not at the level of probability that the publication will cause sedition.”(Ibid. [1] at p. 565).

According to my approach, the said phrase speaks of an “attribute” and “character imprint” of the publication and not it’s potential to create a risk, at this or another level of certainty, of realization of the sedition.  As for me, the fact that the publication is characterized by an inherent objective “attribute” to incite to sedition is sufficient to create the risk which the legislator seeks to prevent.  So it is regarding section 134(c) of the Law and so it is regarding the phrase “for the purpose of sedition” which defines the prohibited act according to section 133 of the Law.

If the legislator had wanted to establish a probability link to the realization of the risk inherent in the “character imprint” that it established for the prohibited act according to the two sections, it would do so explicitly; and would not suffice with establishing a “characterizing imprint” which is directed at the uniqueneness of the act and not its potential to bring about the realization of its characteristics in fact.

The risk lies first and foremost in the “character” of the prohibited act.  And this character is not conditioned on the level of reasonableness of its realization in fact.

Indeed there is a strong affinity between the illegitimate “characteristic” – as a component of the element of the crime – and its power to fulfill itself: as the risk inherent in the “characteristic” is what is at the basis of the prohibition, whose purpose is to prevent its realization.  However, this is not sufficient to create the basis for a requirement of the existence of a probability link between the two: the risk in the character imprint and the possibility of its realization.  According to the language of the definition of the two sections under discussion here, the legislature himself made do with the very existence of the risk as a “characteristic” of the prohibited matter; and did not say a word as to the chances of the realization of this risk.  The realization of the risk is dependent, in a non-negligible manner, on outside factors; and these may change from place to place and timeframe to timeframe.  It would be far-reaching to add to the definition of the offenses a requirement as to a probability link between the risk and the possibility it will be realized where the legislature did not say a word on the matter.

According to each of the two said sections, such a constriction may wreak havoc; and has the ability to bring on an overall missing of the target of the offenses established in these sections.

In this case, my colleague was of the opinion that the requirement of meeting the “probability test” has been met; and therefore there is no practical significance to my differing position in this matter.

Given this situation, I agree with the result reached by my colleague, Justice Or.

Justice D. Dorner

1.  The respondent, who stood at the head of the “Kahane Lives” movement, distributed among Jewish voters, in the course of the campaign conducted by this movement for the elections to the 13th Knesset, a pamphlet containing the following language:

“Bomb Umm El Fahm!  Why is it that when Arabs came out of Umm El Fahm and slaughtered three soldiers – the government sent out to bomb the Hezbollah in Lebanon instead of bombing the hornets’ nest of Umm-el-Fahm?

Why is it that every time a Jew is killed we shell Lebanon and not the hostile villages within the State of Israel?

For every attack in Israel -- bomb an Arab village – a nest of murderers in the State of Israel!

Only Kahane has the courage to speak the truth!

Give power to Kahane and he will take care of them.”

The respondent was convicted in the District Court for possession of a pamphlet in accordance with the offense of possessing publications of a seditious nature under article 134(c) of the Penal Code 5737-1977 (hereinafter: “The  Law”), and for distributing the pamphlet in accordance with the offense of committing acts of sedition under article 133 of the Law.  The District Court held that the respondent was aware of the power of the pamphlet to incite seditious acts against the Arab citizens of the State of Israel, and he distributed the pamphlet amongst Jews with the goal of arousing in them hatred toward the Arab public.  On the basis of these facts the respondent was acquitted, by a majority, in this court.  This, since the pamphlet did not have the objective potential (according to the view of Justice Eliezer Goldberg) or a real or reasonable possibility (according to President Barak) to cause harm to the structure of our democratic regime and to its stability.

In his opinion in the further hearing, my colleague Justice Theodor Or, reached the overall view that first,  the term “sedition”, according to its meaning in article 136 of the law in which it is defined, is not limited to causing harm to the order of government, but  rather also includes generating hostility among portions of the population as said in article 136(4) of the law;  second,  a probability test is present within the framework of the elements of the offense, and that the test is one of near certainty.  And third, the pamphlet may, at the level of near certainty, plant hatred towards the Arab public and incite acts of violence against it.

The conclusion of Justice Or was that the appeal is to be accepted and that the conviction of the respondent is to be left as is, according to the judgment of the District Court.

On the other hand, Justice Barak, who did not change his view from the original discussion in which he held that the respondent is to be acquitted of the offenses attributed to him, commented that even if we were to accept the broad definition of the phrase “sedition” in accordance with  the view of Justice Or, then still, not only is the more stringent test of near certainty not met, but the publication of the pamphlet does not even create a risk on the level of a reasonable or real possibility, for the realization of the risk, but rather only something on the level of a “bad tendency”.

2.  I agree with my colleague, Justice Or, that the appeal is to be accepted.  I also agree with his interpretation of the term “sedition” in article 136 of the Law.  In addition, in my view, inciting to seditious acts against a minority by a party running for elections to the Knesset during the course of a campaign, whose purpose is to bring about de-legitimization of that group, harms the structure of the democratic regime.

However, while like my colleague, Justice Or, I also believe that freedom of expression encompasses expressions of sedition, I do not see fit to interpret the offenses established in articles 133 and 134(c) of the Law as including an element of probability that the expressions of sedition will arouse strife toward segments of the population.  In my view, the seditious content of the publication, combined with the required mental element in the offense of committing an act of sedition, which is a “purpose” offense, the awareness of the seditious content, which is of the elements of the offenses of sedition, and the defense in article 138 of the Law, which applies to both offenses, and which was intended to ensure freedom of expression and of political discussion – ensure that the degree of harm to the freedom of expression will not exceed that which is necessary.

3.  In my view including a probability test for offenses that are not “consequential” offenses is problematic.  First, balancing formulas which are determined based on assessment, do not create a test which in regular cases enables the creation of a basis for objective findings.  Second, proving this element beyond a reasonable doubt, which is the level of proof required in criminal law, is close to impossible.

The case before us exemplifies this well.  Thus, Justice Or, who explained that the probability test is a “test of logic and common sense” determined that there is near certainly that the publication of the pamphlet will bring about strife and hatred among the Arab population and will encourage undertaking acts of violence against it, and that the respondent was aware of this,  while President Barak was of the view, that the probability that the publication would lead to that result is distant and not real, and constitutes only a “bad tendency”, meaning, that there is not even a reasonable (or actual) probability of causing this result.  It is clear that President’s Barak’s conclusion is also based on logic and common sense.

Under these circumstances, when two Supreme Court justices have a difference of opinion as to the existence of an objective circumstance that is one of the elements of the crime, it will be difficult to reach the conclusion, at the level of proof required for a criminal case, that the respondent was aware – to a near certainty – that the pamphlet was expected to arouse hatred toward the Arab population.

Under these circumstances, if I were of the opinion that the probability test was an element of the offense, I would find it difficult to agree with the conviction of the respondent of the offenses that were attributed to him.

4.  Balancing formulas fit within constitutional-administrative law in the framework under which there is the concern, which is forward looking,  that the realization of the protected human rights will harm one public interest or another.  Balancing formulas, in their essence, are not exact.  Their application involves exercising discretion by the authority.  In the words of Justice Shimon Agranat:

“. . .It must be admitted that even the test of "near certainty" does not constitute a precise formula that can be easily or certainly adapted to every single case. . .  The most that is demanded . . .   is only an assessment that that is how things are likely to turn out.” [HCJ 73/53 (hereinafter: “HCJ Kol Ha’am” [9]), at pp. 888-889 (emphasis in the original)].

The court, in the framework of its critique of the decision of the authority, examines whether its assessment falls within the framework of the range of reasonableness, and does not establish on its own if there exists one specific probability or another for harm to the expression of a protected interest. 

On the other hand, a circumstantial component, which is part of the factual element of the offense, reflects an objective and definitive situation.  Professor Feller defines this element as “data found in the objective reality at the time of the conduct” (S.Z. Feller, Foundations in Penal Law (Volume 1, 5748-1984) [22] at 376).  In contrast, as stated above, the formula of near certainty, is based on the likelihood of a future occurrence, and  requires an estimation of the probability of this likelihood.  This assessment, by its nature, is not exact, and under its framework different judges are likely to reach different results.  Having this assessment made by the court in the framework of the criminal law is not consistent with the requirement of the principle of legality that there should exist an objective certainty as to the circumstances of the offense.  Justice Eliyahu Mazza discussed this in relating to the offense of incitement to racism:

“the assump[tion]. . .  that the near certainty test constitutes an appropriate criterion for establishing the limit of the said criminal prohibition, has no basis.  The near certainty test is a causal test.  It serves as a criterion for determining the bounds of different basic liberties as necessitated by critical public interests such as state security and the preservation of public peace . . .  this test does not and cannot have application in establishing the limits of a purely conduct related offense, whose actualization, as is apparent from the provisions of article 144B (b), first part, is not conditioned on the occurrence of a certain result.  [CrimA 2831/95 Elba v. State of Israel [10] (hereinafter: “CrimA Elba”) at p. 267].

5.  Indeed, in Israel, balancing formulas were developed in constitutional-administrative law.  First and foremost is the judgment of Justice Agranat in HCJ Kol Ha’am [9] supra, in which, under the inspiration of American case law, he established the balancing formula of a “near certainty of real danger for the clash between freedom of expression and the public peace”.  With that, Justice Agranat was of the opinion that the requirement in American law for the immediacy of the expected harm was too far-reaching, and also was not consistent with the language of the authorizing statute.  See Ibid. at p. 891.

Indeed, the balancing formula of clear and present danger was coined by Justice Holmes in 1919, when the Supreme Court had to determine the constitutionality of a criminal law that limited the freedom of expression .(Schenck v. United States[18]).  The immediacy requirement was made more stringent in 1927, when Justice Brandeis in the judgment of Whitney v. California [19] determined that the expected danger had to be imminent.

However, despite the immediacy requirement, which makes the judicial determination easier, the application of the American balancing formula has been problematic.  Indeed, the assessments made by the court were influenced by the individual perspectives of the judges.  In the professional literature criticism was voiced as to the formula of “clear and present danger”, claiming that its vagueness allows for its manipulation and does not sufficiently protect the freedom of expression.  (See for example, Dean Ely, ‘Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis’[28] (1975)).

In 1942 the “fighting words” doctrine was added.  It establishes a content test which is based less on the individual assessment of the judges as to the degree of probability of realization of the danger.  (See Chaplinsky v. State of New Hampshire [20]).  It was established that the use of speech that by its content causes or incites  immediate harm to public peace, is not protected by the constitution.  In 1969, in the case of Brandenburg v. Ohio [21], after critical reference to the clear and present danger test, it was determined that a criminal prohibition which limits the freedom of expression, requires proving specific intent on the part of the doer to achieve the prohibited result.  [See also David R. Dow and R. Scott Shieldes, ‘Rethinking the Clear and Present Danger Test’ [29](1998).]

In English law as well, from where we absorbed the offense of sedition, it was established that the protection of freedom of expression requires interpreting the law which defines this offense as requiring  “intent” (in the sense of the desire or aim of sedition), and an expectation of the realization of the result at a high probability is not sufficient.  [See  Archbold, Pleadings, Evidence and Practice in Criminal Cases (42nd ed., Mitchell, Richards & Buzzard ed.,1985) [27] at 1170.]

6.  In our matter in article 134(c) of the Law it was established:

“Whoever has in his possession, without legal justification, a publication of a seditious nature, -- is liable to imprisonment for one year and the publication shall be confiscated.”

I am not of the opinion that one is to conclude that the words “a publication of a seditious nature” implies a probability test.  In my view, these words refer to the content of the publication.  It is clear that unlike with an innocent publication, even if in the opinion of the doer it is seditious, and even if has it in his possession with the intent of sedition, a prohibited publication must have seditious content.  Meaning, that the text in its ordinary meaning and context must include seditious words, and in the language of Justice Eliezer Goldberg in CrimA 6696/96 Kahane v. State of Israel [1] at p. 559 must have “seditious potential”.    President Barak also wrote, that “only a publication that from within it, or the background of its context, the sedition itself arises, is the necessary factual element fulfilled.”  (Ibid. at p. 579).  This is in addition to the probability element which, according to his view, is necessary.

At the center of article 134(c) of the Law we thus find the seditious content of the publication and the doer’s awareness of this content.

To these, the defense established in article 138 of the law, entitled, “lawful criticism and propaganda” is to be added.  And this is what is written in the clause:

“An act, speech or publication is not seditious if it intends only:

(1)  To prove that the government has been misled or mistaken in any of its measures; or

(2)  To point out errors or defects in the laws or organization of the State or in one of its duly constituted institutions or in its administrative or judicial orders with the objective of remedying such errors or defects; or

(3)  To persuade the citizens or inhabitants of the State to attempt to procure, by lawful means, the alteration of any matter by law established; or

(4)  To point out, with the objective of the  removal of, any matters which are promoting or have a tendency to promote strife or feelings of hostility between different segments of the population.”

This defense, which was intended to preserve the freedom of expression and political discussion, is an expression of an accepted legislative technique for narrowing the extent of the criminal prohibition.  It is in place of the requirement of proving the desire to achieve the result or alongside such a requirement, which comes to narrow the criminal prohibition.  [See Itzhak Kugler Intent and the Law of Expectation in Criminal Law (1998) [23]at 335.]  From here it arises, that  a publication that has seditious content will not form the basis for an offense, despite the doer’s awareness of the nature of this content, if the goal of the doer was not to be seditious but rather to conduct a political dialogue.

Adding this defense to the requirements of the seditious content of the publication and the doer’s awareness of it, properly balances between the freedom of expression and the protection of the public peace.

7.  The offense of committing a seditious act, according to article 133 of the Law is a “purpose” offense.  Its mental element is the desire of the doer to achieve the said result.  The question is whether the “rule of expectation” (which substitutes actual intent with the expectation that the said result will occur) applies to “purpose” offenses which prohibit expression.  The question has yet to have been resolved in the case law.  In CrimA Elba [11] supra, where the desire to incite to racism was proven, it was referenced in a number of obiter dicta.  See, on the one hand, the words of Justice Mazza at p. 281, and the words of Justice Gavriel Bach, Ibid. at pp. 307-308.  And on the other hand, the words of Justice Goldberg at pp. 309-310, and words that I wrote at pp. 319-320.  Also in the offense of libellous publications, the denial of the application of the expectation rule was reasoned by the need for protection of freedom of expression.  See CrimA 677/83 Borochov v. Yafet [14] at p. 213, 218-219; CrimA 506/89 Naim v. Rosen [15] at p.  139.  Dr. Kugler, who is of the opinion that the expectation rule is to be applied to purpose offenses based on policy considerations, including value-based considerations and justice-based considerations, gives as an example of offenses to which the expectation rule should not be applied, while noting opinion in  comparative law, criminal prohibitions which limit freedom of expression.  See Ibid. 335-336.

It is my opinion as well, that the expectation rule harms the proper balance between freedom of expression and the interests which clash with it.  As explained above, the requirement of the existence of a purposive mental element, in addition to the seditious content – which therefore requires that the doer will operate to achieve the prohibited goal – reduces the harm to freedom of expression, and one is not to be satisfied with a substitute for it.

8.  In our matter, as shown by my colleague Justice Or, the content of the publication is its own proof that it arouses hatred and strife, and that the respondent, who distributed it in the course of his party’s campaign, strove to achieve this aim.

Therefore, I join my view with the view of Justice Or that the appeal is to be accepted as proposed in his opinion.

Justice J. Türkel

Like my colleague, President Barak, I am of the opinion that section 4(a) of the Prevention of Terrorism Ordinance 5798-1948, that was considered in CrFH 8613/96 Muhammad Yosef Jabarin v. State of Israel [2] – and section 136(4) of the Penal Code 5737-1977 – which is under consideration in the further hearing before us – “raise similar problems of construction, and justify utilizing a similar technique of construction.”  For the reasons of the President as well as for my reasons in my opinion in the Jabarin case, which is to be delivered together with the decision here, I join my view to his view that the further hearing is to be denied.

HCJ 9264/04

State of Israel

v.

1.  Jerusalem Magistrates Court (formal respondent)

2.  Jerusalem District Court (formal respondent)

3.  Guy Sarim

4.  A

The Supreme Court sitting as the High Court of Justice

[6 June 2005]

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

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

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

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

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

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

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

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

Petition granted in part.

Legislation cited:

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

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For the fourth respondent — F. Cohen.

JUDGMENT

Justice D. Beinisch

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

Factual background and sequence of proceedings

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

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

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

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

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

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

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

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

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

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

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

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

The claims of the parties

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

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

Deliberations

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

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

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

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

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

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

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

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

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

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

Material that is not in the possession of the prosecution authorities

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

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

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

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

However, this premise is opposed by the premise that:

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

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

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

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

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

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

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

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

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

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

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

10. Section 108 of the Criminal Procedure Law provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It has also been said in our case law that:

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

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

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

Summary

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

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

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

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

Epilogue

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

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

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

President A. Barak

I agree.

Vice-President M. Cheshin

I agree.