Rosenstein v. State of Israel

[This abstract is not part of the Court\u27s opinion and is provided for the reader\u27s convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] The United States filed a petition for the extradition of the Appellant, Ze’ev Rosenstein, for the purposes of prosecuting him for conspiracy to smuggle a dangerous drug to the United States and its distribution there. Following the Petition, the Attorney General submitted a motion to the District Court for a declaratory relief that he is extraditable. The District Court granted the motion and declared the Appellant extraditable. This led to the appeal here. The Appellant claims, among others, criminal justice estoppel, which requires the suspension of the extradition process and that his extradition to the United States is unconstitutional since he is a citizen and resident of Israel and because the offense of which he was accused was committed in its entirety in Israel. The Supreme Court held: A. 1. Whether the doctrine of criminal justice estoppel stands alone in the extradition process or whether it is encompassed in the “internal” defenses of extradition law, an extradition petition that reveals a real concern for compromising principles of justice and legal fairness or for the right to due process may be refused for such reasons. Where extradition procedures have already commenced, they may be suspended. 2. In this case the claim of criminal justice estoppel must be rejected. We cannot accept the Appellant’s arguments as to discrimination compared to other defendants and as to a flaw in the Prosecutions divergence from previous policy. B. In light of the independent and active role the Extradition Act grants the judicial authority, courts reviewing extraditions must consider the range of factors relevant to the petition. The factors include: the nature of the act at the basis of the extradition petition, including the proper enforcement policy regarding it; the strength of the connection between the act and the legal systems of the requesting country and the requested country; the requirements, in the relevant case, of extradition laws, including those in agreement-based international law; the ability to ensure the subject of the extradition request a due process and fair trial in the requesting country; the public interest in extradition and the proper balance between extradition and one’s constitutional right not to be extradited; considerations as to the status of Israel, its sovereignty and international relations, including considerations of reciprocity. C. The Appellant’s matter meets the procedural and substantive requirements of the Extradition Act. The relevant act meets the “dual criminality” rule and has yet to pass the period of limitations, the Appellant is not exposed to double jeopardy and the offence of which he is accused carries a penalty of more than a year’s incarceration; the context of the extradition is not political or security based, and the extradition is not discriminatory against the Appellant; the evidence presented is sufficient for extradition; the United States has committed to return the Appellant to Israel for the purposes of serving his sentence should he be committed, and the extradition is contingent upon this commitment. D. 1. The acts of which the Appellant is accused create both American and Israeli jurisdiction. The offenses for which the United States wishes to prosecute him allow, by their nature and under the principles of the law there, to expand the application of this country’s laws to acts committed outside of its borders. Israeli law views the issue of extra-territorial application in this case the same way American law does. This approach is clearly expressed in the extradition treaty between the two countries as well. Additionally, both countries have a territorial link to the relevant acts: the conspiracy was completed in Israel (a narrow territorial link) and its impact materialized in the United States (broad territorial link). At the same time the acts are connected to the Israeli system by virtue of the Appellant’s Israeli citizenship and residence, and to the United States by virtue of the fact that the harmed party is the American public and the essential interests of this country. Both countries, put together, have an interest in bringing to justice those who are suspected of committing drug offenses. 2. The primary purpose of extradition is in the principle of allowing the “natural judge” of the defendant to consider the case. To the extent that this concerns criminal law, the “natural” legal system is that which has the most links to the relevant allegations. This approach is termed at times the approach of the “majority of links” or the approach of offense’s “center of gravity”, and it best reflects the connection between the offense and the legal system which ought to apply to it. Therefore, to the extent that one’s act, regardless of the physical location of where it is committed, is particularly linked to the legal system of the requesting country, then the purposes of extradition law leads to the conclusion that such person much be extradited to such country. Identifying the center of gravity of the offense is merely a rule of preference which reveals which of the legal systems’ link has priority in regard to the offense. This is not a determinative rule, and its outcome joins the other factors taken into account in the decision. 3. Under the circumstances of the case at hand, we must determine that the conspiratorial act and its outcomes, as one, are linked primarily to the United States and that the case’s center of gravity is in this country. The geographical location where, as argued, the Appellant acted has no real importance. Therefore the American system takes priority under the “preference rule”. This is the “natural system” for adjudicating the Appellant’s guilt. The harms it suffered from the criminal activity must be attributed significant weight. Its clear interest in realizing its sovereignty must be given preference, which is realized through the prosecution – within its borders – of those responsible for such harms. The pragmatic expression of this is in granting the extradition petition. E. The Appellant’s argument that the extradition would violate his due process rights should be rejected. The issue of fairness must be considered in the context of the foreign criminal law in its entirety and in light of the overall system of constitutional balances it holds. The American legal process follows principles of fairness in all of the substantive and procedural rights that flow from it. This is sufficient to ensure that the Appellant would not be exposed to a process that is not fair. F. The Appellant’s extradition is consistent with the public interest. It realizes the purposes at the foundation of extradition. It is not done out of coercion or pressure, but based on the positions of the Israeli prosecution and courts. It is but a clear reflection of Israel’s sovereignty, and insofar that it is build on a foundation of reciprocity in the relationship with the United States, it is expected to strengthen the principle of sovereignty when Israel submits a similar request to the American legal authorities. G. All four conditions of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty are met in the matter of the Appellant’s extradition. H. Therefore the District Court’s declaration of the Appellant as extraditable to the United States is lawful. This is a result of recognizing the natural prerogative given under the circumstances to the United States to protect itself from those threatening it from the outside. It is required by the desirable cooperation between the two countries. It is required by the interest of the Israel public, and such is the proper balance between it and the Appellant’s rights. The Appeal must be rejected

Noar KeHalacha v. Ministry of Education

Facts: The Beit Yaakov Girls’ School in Immanuel is a recognized unofficial school that operates under a licence from the Ministry of Education and is subsidized by the state. In 2007 changes were made to the school, and a new ‘Hassidic track’ was introduced alongside the ‘general track.’ These tracks were completely separate from one another, and the new ‘Hassidic track’ was housed in a separate wing of the school, with a separate playground, a separate teachers’ room, a wall separating the two tracks and a different uniform from the one worn by girls in the ‘general track.’ Thus the school was effectively split into two schools. An investigation carried out on behalf of the third respondent found that 73% of the girls in the new school (the ‘Hassidic track’) were of Ashkenazi origin (i.e., their families came from northern European countries), whereas only 27% were of Oriental or Sephardic origin (i.e., their families came from Middle-Eastern or North African countries). In the old school (the ‘general track’) only 23% of the girls were of Ashkenazi origin. Nonetheless, the investigation found no evidence that there were any girls who were refused admission into the Hassidic track. The third respondent ordered the school to remove the physical separations between the two tracks and to eliminate the separate uniforms. However the school did not comply. Held: The physical separation and differentiation of the two tracks was discriminatory and the school was ordered to remove the physical barriers and eliminate any indication of discrimination in the school. The Ministry of Education was ordered to ensure that the order was complied with, failing which, it should consider cancelling the school’s licence and subsidy

Physicians for Human Rights v. The Commander of the IDF Forces in the West Bank

Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioner requested explanations from the State regarding accounts of IDF fire on ambulances and injuries caused to the medical teams traveling in them. Petitioners requested that respondents be ordered to cease such activities. The State responded that these incidents were the result of the Palestinian’s use of ambulances for the transport of explosives. Even so, the State held firm in its obligation to fulfill its duties under international law. The State asserted that combat forces had been instructed to act in accordance with the rules of international law. Held: The Supreme Court held that international law provides protection for medical stations and personnel against attack by combat forces. Article 19 of the First Geneva Convention forbids, under all circumstances, attack of stations and mobile medical units of the “Medical Service,” that is to say, hospitals, medical warehouses, evacuation points for the wounded and sick, and ambulances. However, the “Medical Service” has the right to full protection only when it is exclusively engaged in the search, collection, transport and treatment of the wounded or sick. Moreover, Article 21 of the First Geneva Convention provides that the protection of medical establishments shall cease if they are being “used to commit, outside their humanitarian duties, acts harmful to the enemy”, on condition that “a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.

Milstein v. Chief Military Prosecutor

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence. Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial held that the appellant’s refusal to testify in his trial constituted ‘something extra,’ thus allowing them to convict him. The appellant applied for and was granted leave to appeal to the Supreme Court on the question whether the refusal of a defendant to testify, in accordance with his right to remain silent, could constitute ‘something extra,’ thereby allowing the court to convict him on the basis of his confession. Held: (Minority opinion — Justice Levy) As a rule, the silence of a defendant in his trial should not constitute ‘something extra’ for a confession that he made during his interrogation, but where a video recording was made of the interrogation, so that the court is given the possibility of watching the interrogation and the defendant’s confession, the silence of the defendant in his trial may constitute ‘something extra.’ (Majority opinion — Justice Arbel and President Emeritus Barak) As a rule, the silence of a defendant in his trial should not constitute ‘something extra’ for the confession that he made during his interrogation. There are, however, exceptions to the rule. These should not be limited solely to cases where a video recording of the confession was made. The court has discretion to regard the silence of a defendant in his trial as ‘something extra’ for his confession during his interrogation. This discretion should be exercised sparingly. It should only be used when three conditions are satisfied: first, the confession is logical, consistent, clear and detailed. Second, the court can rule out the possibility that the defendant, because of some internal pressure, confessed to something that he did not do. Third, the court should be satisfied that the defendant’s silence in the trial is not the result of some internal or external pressure, nor is it the result of some innocent motive

A.I.M.D. Ltd. v. Mordechai

Facts: This is a petition to quash the decision of the Diamonds Supervisor to seize and confiscate goods imported by the petitioner. In February 2007, the petitioner – a company that imports and exports diamonds – imported into Israel a diamond weighing 14.32 carats from the African state of Mali. Mali is not a member of the Kimberley Process Certification Scheme, in which Israel is a participant. The imported diamond was not accompanied by a “Kimberley Process Certificate,” as required under the Israeli legislation implementing the Kimberley Process. Therefore, the Supervisor did not issue an import license for the diamond, seized it, and ordered its forfeiture. The petitioner challenged the Diamond Supervisor’s exercise of discretion, arguing that it should be permitted to return the diamond to the country of origin, and that in view of the grave financial loss to the petitioner and the availability of a less harmful alternative, confiscation of the diamond constituted an extreme abuse of discretion. Held: The High Court of Justice unanimously denied the petition. The imperative nature of the term “will be forfeited” in the Import and Export Law, imposing a duty upon the customs officer to confiscate the goods, has long been deemed conditional by the Court, and under certain circumstances, unlawfully imported goods will not be forfeited. An examination of the legislative purpose of section 7 of the Import and Export Ordinance shows that the supervising authorities enjoy a certain, albeit narrow, degree of discretion in regard to the question of the means of enforcement to be applied in regard to diamonds that cannot lawfully be imported or exported. While forfeiture will normally be the most effective and appropriate means for realizing the objectives of the Kimberley Process, there must be at least a limited possibility for not adopting that course when the circumstances demand. An examination of the various considerations shows that in view of the time that passed between Israel’s joining the Kimberley Process and the importing of the diamond, the instructions given to the petitioner in regard to the Kimberley Process, and primarily, due to the importance of the fight against the blood diamonds phenomenon, the respondent’s decision to require forfeiture was reasonable, and the respondent did not act improperly in weighing the various considerations. JUSTICE

Agbar v. IDF Commander in Judaea and Samaria

Facts: In 2007, an administrative detention order was made against the petitioner in HCJ 9441/07 on the ground that he was active in the Hamas organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for an additional period of six months. In 2006, an administrative detention order was made against the petitioner in HCJ 9454/07 on the ground that he was active in the Popular Front terrorist organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for two further periods of six months. The petitioners claimed that there was no evidence to show they presented a threat to security. The respondents argued, on the basis of privileged evidence, that the two petitioners did indeed present a threat to security. Held: The main difficulty in administrative detention cases is that much of the evidence is privileged, because of the concern of revealing sources and intelligence methods and witnesses’ fears with regard to appearing in court. The risks in these contexts are real. A detainee does not have a proper and complete opportunity of defending himself against what is alleged against him; he is not shown most of the evidence, he cannot examine it and he is unable to conduct a cross-examination. This requires the court to be especially careful and to examine the evidence brought before it very carefully. When doing so, the court should regard itself as being a ‘temporary defence counsel.’ Administrative detention is the last resort. Because of the manifestly problematic nature of administrative detention, every effort should be made to bring the detainee to a criminal trial. In the specific cases, the evidence against the petitioners was sufficiently serious to justify their continued detention. JUSTICE

Physicians for Human Rights v. The Commander of the IDF Forces in the West Bank

Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioners claim that the IDF violated international law by firing upon medical teams, preventing the evacuation of the wounded and the sick to hospitals, preventing the removal of bodies for the purposes of burial, and preventing the supply of medical equipment to hospitals. Respondents reply that, during the course of warfare, it became clear that incidents had occurred during which explosives had been transported in ambulances, and wanted terrorists had found shelter in hospitals. However, respondents asserted, the IDF sees itself as bound to its obligations under humanitarian law, not only because this is their duty under international law, but also due to moral and even utilitarian considerations. Combat forces had been instructed to operate according to humanitarian law, and the IDF has dedicated personnel and resources to provide humanitarian aid was reaching combat areas. Held: The Supreme Court held that combat forces must fulfill the rules of humanitarian law pertaining to the care of the wounded, the sick and the removal and burial of bodies. The fact that medical personnel have abused their position in hospitals and in ambulances has made it necessary for the IDF to act in order to prevent such activities but does not, in and of itself, justify sweeping breaches of humanitarian rules. Indeed, this is also the position of the State. This stance is required, not only under the rules of international law on which the petitioners have based their arguments here, but also in light of the values of the State of Israel as a Jewish and democratic state

Negev Coexistence Forum v. Ministry of Infrastructure

Facts: This petition concerns an urgent petition for an interim order. Petitioners request that the State build a bridge over Wadi Hebron in order to enable children to reach the regional public school. The State recognizes the urgent need for erecting a bridge, but claims that it is not possible within the framework of current regional planning laws. Held: The Supreme Court held that the Basic Law: the Judiciary has a constitutional status superior to ordinary legislation. This superior status is not limited to the Basic Law’s grant of jurisdiction but also applies to its conferral of power to grant remedies. The Court, however, will generally abstain from granting a remedy under the Basic Law: The Judiciary if that remedy does not accord with other legislation, even if that legislation is subordinate to the Basic Law. However, in outstanding circumstances, when the case “cries out for help,” the court will not abstain from taking advantage of this “unconventional” authority. The Court held that, under the circumstances, use of its authority pursuant to the Basic Law was justified. As such, the Court ordered the State to build, as quickly as possible, a bridge over Wadi Hebron

Kav LaOved Worker’s Hotline v. Government of Israel

Facts: The government of Israel adopted a policy of allowing foreign workers to come to work in Israel. The residence permits given to the foreign workers are conditional upon the foreign workers working for a specific employer (‘the restrictive employment arrangement’). Consequently, if the worker leaves his employer, he automatically becomes an illegal alien, and is liable to be arrested and deported. The petitioners attacked this policy, on the grounds that it violates the dignity and liberty of the foreign workers. It also undermines the bargaining power of the foreign workers in the employment market. The respondents replied that the restrictive employment arrangement is needed in order to ensure supervision of foreign workers in Israel and to make sure they leave Israel when their period of work ends. The respondents also argued that they have introduced a procedure for changing employers, but the petitioners claimed that this does not amount to a real change in the system. Held: The restrictive employment arrangement violates the dignity and liberty of the foreign workers. This violation does not satisfy the requirement of proportionality in the limitations clause in the Basic Law: Human Dignity and Liberty. There is no rational connection between the restrictive employment arrangement and its declared purpose of supervising the foreign workers in Israel, as can be seen from the ever increasing number of foreign workers that remain illegally in Israel. The restrictive employment arrangement is not the least harmful measure that can be adopted. It is also disproportionate in the narrow sense, because the sweeping violation of the rights of the foreign workers is not proportionate in any degree to the benefit that is derived from the restrictive employment arrangement. Petition granted