Recent Developments in Israeli Law

In this update we report on the Supreme Court’s recent judgment in four challenges to decisions of the Central Elections Committee for the 21^st Knesset, an appeal of a judgment of the National Labor Court on the question of whether resignation due to sexual harassment should be deemed  dismissal for the purpose of compensation, and an appeal addressing the question of when organized criminal activity demonstrates the existence of a “criminal organization” under the Combating Criminal Organizations Law, 5763-2003.

Avinoam Sharon, M.A., Adv.

Editor-in-Chief

EDA 1806/19, EA 1866/19, 1867/19, 1876/19 In re The Central Elections Committee for the 21^st Knesset (March 17, 2019; March 21, 2019).

On March 17, 2019, the Supreme Court (President E. Hayut, Justices N. Hendel, U. Vogelman, I. Amit, N. Sohlberg, M. Mazuz, A. Baron, G. Karra, D. Mintz) delivered its decisions in an Elections Decision Approval and three Elections Appeals on decisions by the Central Elections Committee in regard to the certification of party lists and candidates for the coming Israeli elections. Due to the strict statutory time limit imposed upon such decisions, the Court issued them without stating reasons. On Thursday, March 21, 2019, the Court released a summary of its reasons. As the Court noted in releasing the summary: “…writing the detailed reasoning of the nine justices of the panel requires time, and we will present it as soon as possible.”

Section 7A of Basic Law: The Knesset establishes three criteria for prohibiting the participation of a list or a candidate in elections to the Knesset:

1. negation of the existence of the State of Israel as a Jewish and democratic state;
2. incitement to racism;
3. support of armed struggle, by a hostile state or a terrorist organization, against the State of Israel.

EDA 1806/19 concerned the candidacy of Dr. Ofer Cassif of the Hadash-Ta’al list. The Elections Committee disallowed Dr. Cassif’s candidacy, contrary to the opinion of the Attorney General. The Court majority (Justice D. Mintz dissenting) reversed the decision of the Committee.

The Committee’s decision to bar Dr. Cassif was based upon the grounds of negation of the existence of the State of Israel as a Jewish and democratic state, or support of armed struggle against the State of Israel. While the Court was severely critical of Dr. Cassif’s statements, particularly those implying a comparison to Nazi Germany, those statements did not, in the opinion of the majority, fall within the compass of support of armed struggle. The majority was also not convinced that Dr. Cassif’s statements in regard to the desirable character of the State of Israel met the necessary evidentiary standard for demonstrating the negation of the existence of the State of Israel as a Jewish and democratic state.

EA 1866/19 concerned the candidacies of Dr. Michael Ben Ari and Adv. Itamar Ben Gvir of the Otzma Yehudit party. The Court (Justice N. Sohlberg dissenting) granted the appeal against Dr. Ben Ari’s candidacy, adopting the opinion of the Attorney General and rejecting the decision of the Committee, such that he will be banned from running for the Knesset.

In the opinion of the Attorney General, Dr. Ben Ari’s conduct and statements expressed incitement to racism as a dominant and central objective. The Court was of the opinion that the evidence convincingly demonstrated a “critical evidentiary mass” that comprised repeated, unambiguously inflammatory statements against the Israeli Arab populace over the course of years.

It should be noted this is the first decision barring an individual candidate from running since the enactment of the 2002 amendment to the Knesset Elections Law that made it possible to bar an individual candidate.

The appeal against Adv. Ben Gvir’s candidacy was dismissed. Neither the Attorney General nor the Court found that the evidence against Mr. Ben Gvir met the stringent requirements for grounding a ban of his candidacy by reason of incitement to racism.

EA 1867/19 concerned an appeal of the Committee’s approval of the Hadash-Ta’al list. The Court dismissed the appeal in a unanimous decision, adopting the opinion of the Attorney General. The Attorney General was of the opinion that the evidence presented did not meet the demanding standard for proving that the lists supported armed struggle against the State. He was further of the opinion that, according to the Court’s case law, the desire that Israel be “a state of all its citizens” does not, of itself, demonstrate a negation of the State of Israel as a Jewish state to the extent that the list should be banned from standing for election.

EA 1876/19 concerned the Committee’s decision to disallow the Ra’am-Balad list, contrary to the opinion of the Attorney General. The Court (Justice D. Mintz dissenting) reversed the Committee’s decision. In this regard, the Court gave some weight to the fact, pointed out by the Attorney General, that this is a joint list and that banning Balad could lead to the banning of the Ra’am list, although no objections were raised to its participation in the elections. Weight was also given to the fact that most of the statements and actions grounding the request to bar the list were made by members of the party who were no longer candidates, while the evidence against the current candidates did not rise to the level necessary for barring a list from participating in the elections.

It should be noted in regard to EA 1867/19 and EA 1876/19 that no list has been barred from standing for election since 1988, when Meir Kahane’s Kach list was prevented from seeking a second term.

The Court will publish its full reasoning in the above decisions at a later date.

HCJ 9239/17 Diamaano Maria Luisa v. National Labor Court et al. (Feb. 24, 2019).

The Petitioner quit her job due to sexual harassment in the workplace. She subsequently sued her employer for sexual harassment, severance pay and compensation for lack of prior notice. The Tel Aviv District Labor Court found for the Petitioner on all three heads and awarded compensation accordingly. The employer appealed to the National Labor Court, which found that because the Petitioner had resigned although her employer wished for her to stay, she was not entitled to severance or prior notice. The Petitioner filed a petition against the judgment of the National Labor Court.

In the course of the petition, the parties reached an agreement that the petition should be granted. In granting the petition, the High Court of Justice (per Justice N. Hendel, Justices Y. Willner and O. Groskopf concurring) saw fit to add that the reasoning of the National Labor Court was unacceptable. In a case of sexual harassment in the workplace, the court should act in accordance with sec. 11(a) of the Severance Pay Law, 5723-1963, which states:

Where an employee resigns by reasons of an appreciable deterioration of his conditions of employment, or in view of other matters of labour relations affecting him and because of which he cannot be expected to continue in his employment, the resignation shall, for the purposes of this Law, be deemed to be dismissal.

The Court held that “sexual harassment constitutes ‘other matters of labour relations affecting him and because of which he cannot be expected to continue in his employment’”, and therefore, in a case of sexual harassment, the trial court should determine whether the other conditions for resignation established by law and precedent have been met: “The employee must…inform the employer of his intention, so that it will have an opportunity to cease and correct the wrong…[but] where it is manifestly clear that the employer cannot change and correct the wrong, the employee cannot be expected to warn the employer”, and that there was “a direct relationship between the resignation and the wrong”. These conditions were met in the present case as determined in the findings of the Labor Court. “The result of deeming the resignation as dismissal reflects the severity of sexual harassment in the workplace, and the reality of an employee harmed in this manner. This approach is also consistent with the recent statutory amendments, and the desire to combat this ugly phenomenon of sexual harassment in general, and particularly in the workplace. This, in recognition of the severe harm caused by sexual harassment”.

CrimA 3745/17 Elbaz et al. v. State of Israel (March 10, 2019).

When does organized criminal activity demonstrate the existence of a “criminal organization”? The six appellants, who were accomplices in various criminal activities over the four-year period 2008-2012, were convicted by the District Court for the commission of those crimes while acting in the framework of a criminal organization. The appeal to the Supreme Court addressed the question whether the appellants had committed their crimes in the framework of a criminal organization. The judgment therefore focused upon what constitutes a “criminal organization”.

Justice D. Barak-Erez noted that the Israeli definition of a criminal organization draws upon elements from the United Nations Convention against Transnational Organized Crime (2000), as well as the laws of the United States, Canada, New Zealand, and various European countries, while adapting them to the needs and character of Israel. Thus, certain characteristics often identified with criminal organizations – inter alia, hierarchy, infiltration of governmental institutions, and the amassing of economic assets as a primary objective – were ultimately omitted from the definition. The case law has noted that the term “criminal organization”, as defined by the law, can relate to a broad spectrum of situations (see the definition of the term “criminal organization” in the Combating Criminal Organizations Law, 5763-2003). While that relatively broad definition is important, it gives rise to the possibility that it might “swallow up” or replace other forms of criminal complicity (see, e.g., Boaz Sangero, Are All Forms of Joint Crime Really Organized Crime: On the New Israeli Combating Criminal Organizations Law and Parallel Legislation in the U.S. and Other Countries, 29 Loy. L.A. Int'l & Comp. L. Rev. 61 (2007), cited in the opinion of Justice Barak-Erez).

Justice Barak-Erez therefore identified two primary characteristics that constitute the foundation of a finding of the existence of a criminal organization: synergy and continuity. Synergy indicates a combination of criminal activities in which the whole is greater than the sum of its parts. Continuity refers to a sequence of ongoing criminal activities. The first element aids in distinguishing a gang or “regular” criminal band from a criminal organization, and emphasizes the coordinated activity of several criminal elements in an independent framework, which is not directed at some specific criminal activity. The second element emphasizes the ongoing activity of the criminal elements that ensure existence of the criminal organization even during temporary lulls in criminal activity. Other characteristics, such as hierarchy, attempts at infiltrating governmental institutions, violent mechanisms for debt collection and for confronting external threats, are auxiliary aids in identifying whether a particular criminal enterprise should be deemed a criminal organization.

In light of the above, the Court (per Justice D. Barak-Erez, Justices D. Mintz and Y. Elron concurring) granted the appeal in regard to the period in which the appellants acted in the framework of a criminal organization, finding that the crimes perpetrated by the appellants in the years 2008-2011 were not committed in the framework of a criminal organization.