Dobrin v. Israel Prison Service

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request. The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to grant the request and its decision was therefore ultra vires. In addition, the petitioners argued that it was immoral to allow the murderer of the prime minister to have children; that he had no right to start a family while in prison, that the parental capacity of the third respondent should have been considered; and that the decision was contrary to the natural rules of justice and unreasonable, in that it gave no weight to the feelings of deep abhorrence felt by most citizens at the despicable acts perpetrated by Amir. Held: The first respondent’s decision was made intra vires. A prisoner has a constitutional human right to parenthood. This does not cease automatically as a result of the sentence of imprisonment, although it may be restricted for reasons relevant to the imprisonment. The first respondent does not need an authorization in statute to permit a prisoner to realize his rights. The premise on which the petition is based is fundamentally unsound; it effectively turns the law upside down and undermines basic principles of public and constitutional law. When a person has a right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: authority is required in statute in order to restrict or violate the right. The first respondent does not have a power to add to a prisoner’s punishment that was imposed on him in the sentence handed down by the court. The public’s feelings of abhorrence at Amir’s crime cannot affect the scope of the human rights given to him in prison, and the nature of the restrictions upon them that are permitted. Petition denied

Bishara v. Attorney General

Facts: In 2000 and 2001, while the petitioner was a member of the Fifteenth Knesset, he made two speeches. These speeches expressed support and approval for the Hezbollah organization, which in Israel has been declared a terrorist organization, and the petitioner was indicted for offences of supporting a terrorist organization. In 2002, prior to the elections for the Sixteenth Knesset, applications were made to the Central Elections Committee to disqualify the candidacy of the petitioner in those elections, because of what he said in the two speeches. The Central Elections Committee disqualified the petitioner from standing for election, but this decision was set aside by the Supreme Court in Central Elections Committee for the Sixteenth Knesset v. Tibi, on the grounds that it was not convinced that the petitioner had expressed support for ‘an armed struggle of a terrorist organization against the State of Israel,’ as distinct merely from expressing support for a terrorist organization. Meanwhile, the petitioner raised a preliminary argument in the criminal trial against him that he had substantive immunity against prosecution for the two speeches, since he made them while he was a member of the Knesset. The Nazareth Magistrates Court, which was hearing the trial, held that it would decide the question of substantive immunity after hearing the evidence in the trial. The petitioner then applied to the Supreme Court to set aside the decision of the Nazareth Magistrates Court. Held: (Majority opinion — President Barak and Justice Rivlin) Under the Immunity Law, expressions of support for ‘an armed struggle of a terrorist organization against the State of Israel’ are not protected by parliamentary immunity. This exclusion of immunity should be interpreted strictly. It does not include all expressions of support for a terrorist organization, only those that contain support for an armed struggle of a terrorist organization against the State of Israel. As the court held in Central Elections Committee for the Sixteenth Knesset v. Tibi, the petitioner’s speeches did not contain clear support for an armed struggle of a terrorist organization against the State of Israel, although they did contain support for a terrorist organization. Consequently the statutory exclusion of immunity does not apply. The petitioner’s speeches should be considered under the case law rules for excluding immunity, according to the ‘margin of natural risk’ test. Although the petitioner’s statements and the circumstances in which they were made were close to the line beyond which it would not be possible to say that they fall within the scope of the natural risk involved in carrying out the duties of a member of the Knesset, the ‘margin of natural risk’ test is satisfied in this case. (Minority opinion —Justice Hayut) The petitioner’s two speeches are not protected by substantive immunity, since they expressed support for an armed struggle of a terrorist organization against the State of Israel. In Central Elections Committee for the Sixteenth Knesset v. Tibi the petitioner was not disqualified from standing for election to the Knesset, but the premise for considering the scope of substantive immunity is completely different from the criteria that the court adopts when considering whether to disqualify a candidate from standing for office. The question of substantive immunity naturally arises with regard to a specific case, whereas for the purpose of disqualification in elections it is necessary to show that we are speaking of dominant characteristics that are central to the activities or the statements of the prospective member of Knesset in general. Moreover, for the purpose of preventing participation in the elections, ‘convincing, clear and unambiguous evidence’ must be presented as to the purposes and acts of the candidate. By contrast, the premise for determining the scope of substantive immunity is that the facts of the indictment will be proved

HaMoked: Center for the Defense of the Individual v. Minister of Defense

The petition concerned the Respondents’ authority to employ reg. 119 of the Defence (Emergency) Regulations, 1945 (hereinafter: Reg.119 or the Regulation) in a manner that would permit the forfeiture, demolition and sealing off of the homes of those suspected of involvement in hostile activity against the State of Israel. The Petitioners sought a declaratory order stating that the use of Reg. 119 in that manner and for such purposes is unlawful, inasmuch as, in their view, it contravenes international law and Israeli constitutional and administrative law. The High Court of Justice (per Justice E. Rubinstein, Justices N. Sohlberg and E. Hayut concurring) denied the petition for the following reasons: The use of the authority to demolish houses by virtue of Reg. 119 was only recently renewed, and only in a few instances, following the last wave of attacks, which began with the abduction and murder of three youths, and was followed by frequent, despicable instances of intentional harm, murder and attempted murder of innocents in Jerusalem. In all that regards the question of authority for the use of Reg. 119, it has been held that we are concerned with the lawful use of this means, both in accordance with international law and domestic law. The central question concerns reasonableness and discretion in regard to its use. As held in the past, and as recently noted, the purpose of Reg. 119 is deterrence and not punishment. Its purpose is to provide the Military Commander with tools that can create effective deterrence, the importance of which, itself, is hard to deny. The question of the effectiveness of the demolition of a particular structure is given to the evaluation of the security authorities. It has further been held that although the legal force of the Regulations is not subject to the provisions of Basic Law: Human Dignity and Liberty, inasmuch as they constitute “law in force prior to the commencement of the Basic Law”, they must be interpreted in accordance with the Basic Law, and must be exercised in a measured and proportionate manner. Pursuant to this approach, the case law has established, , inter alia, the following criteria for the delineation of the Military Commander’s authority in exercising the authority granted to him under Reg. 119 to order the demolition of the home of a person suspected of terrorist activity: the severity of the offenses ascribed to the suspect; the number and characteristics of those who will foreseeably be affected by the exercise of the authority; the strength of the evidence against the suspect and the extent of the involvement, if at all, of the other dwellers in the house. The Military Commander is further required to examine whether it would be possible to suffice with exercising the authority only in regard to that part of the house in which the suspect dwelled; whether the house can be demolished without damaging adjacent houses, and whether it would be possible to suffice in sealing off the house, or parts of it, as a less harmful means relative to demolition. This is an open list, and the parameters must be examined as a whole. In other words, choosing to demolish the entire house, rather than sealing off a room or demolishing a particular part of the house, does not necessarily show that the means chosen is disproportionate and justifies the Court’s intervention in the discretion granted to the security forces. Similarly, it is not necessary to show that others who lived in the house were aware of the suspect’s terrorist activity. As noted, proportionality is, first and foremost, examined in relation to the severity of the act ascribed to the suspect, and the requisite degree of deterrence is derived therefrom. The High Court of Justice further explained that the said authority of the Military Commander should not be exercised disproportionately, in a manner that would constitute collective punishment, which is prohibited under international law, and this applies whether the authority is exercised in the territory of the State of Israel or in the Administered Territories. The Court held in this regard that the demolition of the home of a proven assailant, where the harm, which should not be taken lightly, is to the property of the residents of the house but not to that of others or to human life, does not constitute collective punishment prohibited by international law. The Petitioners’ claim as to discriminatory enforcement of Reg. 119 between Palestinians and Jews was rejected as the Petitioners did not meet the especially high standard of proof required to ground that claim. However, the High Court of Justice emphasized the need for periodic review and research in regard to the means and effectiveness of house demolitions. Justices Sohlberg and Hayut added remarks, inter alia, in regard to the question of the effectiveness of house demolitions as a means of deterrence. Justice Hayut also added, inter alia, that if a family whose house was to be demolished could present sufficiently persuasive administrative evidence that they tried to dissuade the assailant from carrying out the act, then it would be proper to attribute very significant weight to this element, which in appropriate cases could negate the decision to demolish the house of those family members

Haifa University v. Oz

Facts: The petitioner employed respondents 1-3 (hereinafter – the respondents) as lecturers in the Theatre Department. Against the background of complaints concerning the management of the department, an Investigative Committee was established, which decided not to renew the employment of respondents 2-3 and to transfer respondent 1 to another department. The Regional Labour Court rejected the respondent\u27s request to order the petitioner to provide them with all of the material relied upon by the Committee, including protocols and testimony, ruling that the material they had received sufficed to allow for an adequate response on the respondents\u27 part to the claims. This decision was appealed to the National Labour Court, which accepted the appeal and ordered the petitioners to transfer all of the materials to the responses, while deleting the names of the witnesses and other identifying details, basing its decision on the fact that as a hybrid body the University was governed by the rules binding an administrative authority vis-à-vis anyone who may be harmed by its decisions. This included the obligation to disclose relevant documents and to allow their examination. The relevance of the documents was based on the Investigative Committee\u27s statement that its conclusions were based on the testimony heard before it and protocols of the meetings in which the testimony was given. The National Labour Court\u27s decision was appealed to the Supreme Court. The petitioners claimed that its functions as a public body do not suffice to subject it to the entirety of obligations of administrative law including the obligation to allow individuals to examine its documents, especially where the imposition of these duties is not accompanied by the correlative authorities and powers conferred on an administrative authority. Furthermore, the petitioner claimed that in view of the Committee\u27s explicit promise to the witnesses not to disclose the documents to the respondent, they should be given a privileged status. The petitioner argued that a breach of this promise violates the witnesses\u27 right to privacy, a right which is protected on three normative levels: constitutional, statutory, and case-law. Compelling it to disclose additional material would decrease the future readiness of students and lecturers to cooperate with voluntary investigation committees at the University. Furthermore, the balance of interests weighs against issuing an order to disclose the documents. The reason for this is that the potential infringement of the witnesses\u27 privacy and the damage to its ability to establish investigation committees in the future far outweighs the damage caused to the respondents by the failure to disclose additional documents. The respondents claimed that receiving the material was essential for proving their claim that the Investigation Committee\u27s Report was replete with inaccuracies that raised doubts about the authenticity of the testimony and the documents submitted to it. Furthermore, the documentation would enable them to confront the allegations against them on a personal level and prove that the Investigation Committee was established and its proceedings conducted with the express purpose of removing them from the Department. Furthermore, the petitioner\u27s hybrid status and its intensified obligation of good faith as their employer precluded it from refusing to disclose the documents, and this obligation was applicable to the petitioner even were it not classified as a hybrid body. They claimed that no basis had been laid for the establishment of a privilege, the promise made to the witnesses contradicted public policy, and the testimony and complains before the committee did not fall within the rubric of private affairs within the meaning of section 2 (8) of the Protection of Privacy law. At all events, they argued, their right to a fair and just trial overrides the right of the witnesses to privacy. The Supreme Court dismissed the petition and ordered the petitioners to provide respondents with the protocols while deleting the names of witnesses and other identifying particulars. Held: As a proceeding being adjudicated by a statutory judicial tribunal, the starting point for disclosure and examination must be that of maximum disclosure and the broadest possible examination of the information relevant to the dispute. The doing of justice is based on the disclosure of the truth, thereby serving the interest of the individual litigant and the public interest in ensuring the proper functioning” of the entire social structure, which requires a fair hearing that accommodates the presentation of the entire factual evidentiary foundation, thus affording the party the opportunity to properly contend with the claims of the opposing party. While the overall aim of the rules of procedure is the discovery of truth, as is the rules of evidence, the principle is not an absolute one, and may be qualified by other competing rights and values which are of importance to the individual and to society and worthy of protection, even if they are in conflict with the principles of broad disclosure. In order for a litigant in a judicial proceeding to be exempted from the obligation to disclose relevant evidence at his disposal, he must prove a privilege recognized by law or by accepted case law that allows him to withhold it. Having proved the existence of that privilege, and to the extent that the privilege is a relative one, the litigant must then show that the interest in the suppression of the evidence outweighs the need to disclose it for the purposes of doing justice. The normative sources referred to by the petitioner, namely the constitutional and legal right of witnesses and complainants to privacy, and the public interest in a privilege of information given to voluntary examination committees in academic institutions, have not, to date, yielded any statutory or case-law privilege in Israeli law with respect to testimony or documents submitted to an investigation committee of an academic institution. In the establishment of a new case-law privilege it must be remembered that privilege is the exception and the rule is disclosure of most of the relevant evidence, and as such a party claiming privilege must prove both the existence of a legally recognized privilege and a more important consideration of public interest that justifies its application in cases in which the court has discretion. Given that the issue concerns a voluntary investigation committee intended to examine internal university matters it would seem that the public interest in ensuring the effective operation of this kind of committee does not, per se, warrant the establishment of a high-level legal norm of privilege in relation to the testimony and evidence presented to it. Regarding the “chilling effect” of duty of disclosure upon the willingness of potential witnesses to give testimony, thus impairing the functioning of university investigation committees, this consideration is outweighed by the need to enable the employees harmed by the committees\u27 conclusions to defend themselves against allegations leveled at them, and this is certainly the case when the procedure is conducted before a judicial forum adjudicating the question of the legal validity of a change in the employment conditions of respondent 1 and the termination of its employment of respondents 2 and 3. Notwithstanding the constitutional status of the right to privacy, the provisions protecting it do not encompass all violations of the right to privacy, and indeed there is nothing to prevent the creation of additional protections of this kind in settled case law, which draw their justification from the right to privacy, even if the protection has not been explicitly regulated by statute. Nonetheless, the alleged infringement of the privacy of the complainants and the witnesses does not justify the creation of a high-level defense of privilege against the disclosure of the information. The gravity of the alleged infringement of privacy, to the extent that there was such, is relatively low, and at all events does not match the harm liable to be caused to the respondent\u27s right to a fair proceeding if the protocols and complaints are not disclosed. Neither does the promise of confidentiality given by the Committee to the complainants and the witnesses, constitute a basis for privilege, and the violation of the privacy of the witnesses and complainants involved in the breach of that promise does not establish a public interest that justifies vesting the information with a privileged status in the circumstances of this case in view of the weight of the opposing considerations. Justice Naor: The question whether or not the names and identifying details of the complainants and witnesses should have been omitted from the copies of the minutes relayed to respondents should be left for future decision, as there is no petition of respondents before us, and as that is not the issue in this case. Insofar as the voices of the complainants and the witnesses were not heard in the proceedings before us, nor can it be said that the promise given to the witnesses should be seen as including an unwritten reservation to the effect that the promise is subject to any lawful requirement to give testimony or submit a document. The basis for compelling disclosure in this case should rather be that promise of confidentiality cannot override provisions of law requiring the giving of testimony or disclosure of documents. There is an uneasy feeling regarding the fact that the promise was not kept and the interests of complainants and witnesses were not safeguarded, nonetheless, in the current circumstances, the interest of safeguarding the respondents’ workplace and honor overrides the interest of the complainants and witnesses. Note well: if their testimony is accepted they have nothing to fear. Nevertheless, if they provided incorrect information, on the basis of the secrecy promise, there is no reason to protect them. A proper judicial proceeding reveals the truth, whatever it may be. Not having examined the disputed documents and related testimony, the court cannot make any definite finding on the question of whether there was an infringement of privacy of the complainants and witnesses. However, even under the assumption of a certain infringement of the right to privacy to the extent that it extends to court proceedings, when balanced against the harm to the respondents due to non-disclosure of the documents, the respondents would have the upper hand. The interest in preventing harm to the good names, careers and dignity of the respondents, and the public interest in revealing the truth and the propriety of the judicial process, outweigh the interest in preventing a chilling effect on witnesses and submitters of evidence to investigative committees. In view of the above, the petitioner should be left with a choice either to disclose the information in the framework of the litigation, or to cancel the dismissal. This is similar to the choice of a criminal prosecutor when it is held that he must reveal classified evidence: he can choose to reveal the evidence or to withdraw the charges. The question whether the petitioner should reveal the information due to its status as a hybrid private-public body should be left to future decision, as there was not a sufficient factual basis laid before us. There may also be differences on this issue between a committee of investigation and an appointments committee. President Beinisch. The respondents’ consent to disclosure of the documents and protocols subject to the deletion of the witnesses’ names and other identifying details detracts from the force of the petitioners’ claims concerning the severity of the infringement of the witnesses privacy and the alleged “chilling effect”. Without ruling on the matter it seems that in exceptional cases, the public interest might justify recognition of a case-law based privilege which would prevent the divulging of sources who testified before voluntary investigation committees, for example - committees charged with the investigation of matters in which there is a major public interest in receiving information. Such circumstances do not exist in the case of a voluntary Investigation Committee set up to examine difficulties that arose in the management of the Theatre Department from both the academic and administrative perspectives. Notwithstanding the importance of this kind of committee for enhancing the quality of instruction and streamlining of the support systems in academic institutions, they do not serve a critical public interest that supersedes the broad principle of disclosure, the reasons for which lie in the public welfare and the aspiration to expose the truth and do justice in the judicial process, and in the respondents’ personal interest in properly defending themselves against the damage to their occupation and their dignity. The absence of a privilege however does not mean that the Investigation Committee was not permitted to make any promise regarding the disclosure of the testimonies given before it, although the nature and extent of such a promise would be dependent on the statutory conditions applicable to the matter. Under the circumstances the promise given by the Investigation Committee was not, in essence, violated, in view of the decision that the material would be given to the respondents without revealing the witnesses’ names. Petition denied

Eurocom DBS v. Bezeq

Facts: Bezeq, the Israel Telecommunications Corporation Ltd., held 49.78% of the shares of “Yes” D.B.S. Satellite Services (1998) Ltd. Another 32.6% of the Yes shares are held by Eurocom D.B.S Ltd. Yes is one of only two providers in the multi-channel television broadcast infrastructure market and in the multi-channel television broadcasting market. The other multi-channel television provider in the market is “Hot”. Bezeq is a public company licensed to provide internal fixed line services, including fixed line telephony and Internet infrastructure. Bezeq also provides the public with a wide variety of communications services through its subsidiary and affiliated companies, including international telecommunications services and Internet service provision, cellular telephony, and endpoint equipment for telephony. On 27 June 1995, Bezeq was declared to be a monopoly in a number of communications markets, and on 10 November 2004, it was declared to be a monopoly in high-speed Internet service provision. On 2 August 2006, Bezeq and Yes submitted a notice of merger pursuant to the Restrictive Trade Practices Law, 1988, declaring Bezeq’s intention to exercise options that it held and that would give Bezeq 58.36% of the shares of Yes, making it the controlling shareholder of Yes. The General Director of the Israel Antitrust Authority objected to the merger as presenting a reasonable risk of significant harm to competition from both a horizontal and vertical perspective. Bezeq filed an appeal with the Antitrust Tribunal. Eurocom joined the proceedings in support of the General Director’s decision. The Tribunal overturned the decision of the General Director, ruling that the merger would be permitted subject to certain conditions. The General Director and Eurocom filed the current appeal against the decision of the tribunal. Bezeq filed a counter- appeal in regard to the amount of the bank guarantee that the tribunal required of it as one of the conditions for the merger. Held: Justice E. Hayut (Deputy President E. Rivlin and Justice E. Rubinstein concurring) delivered the opinion of the Court. Companies may not merge without the consent of the General Director of the Antitrust Authority. The test for exercising the General Director’s authority under s. 21 of the Restrictive Trade Practices Law is the existence of a “reasonable risk” – i.e., estimation that there will be a significant damage to competition due to the proposed merger, or damage to the public with respect to one of the matters listed in the section. The basic assumption of the Law is that mergers are desirable, in that they increase business efficiency and benefit consumers. However, because mergers can harm competition due the increase in the power or market share of the merging companies, the legislature saw fit to review them, and in certain cases, even to limit them in order to protect the public against economic distortions resulting from excessive concentration of certain markets. Protection of competition in the communications industry is of special importance, as the media carries out an essential function for our existence as a democratic society, and serves to realize fundamental rights such as freedom of expression and the public’s right to know. Historically, the Israeli multi-channel television industry has been characterized by a lack of direct, effective competition. In 2000, a satellite television company entered the market. The technological innovation changed the market from a monopoly to a duopoly. The current reality in the Israeli multi-channel TV broadcast industry is that there are only two players– Hot and Yes – in the infrastructure market and in the content market, and each of them maintains full vertical integration between the infrastructure and broadcasting levels. The merger under discussion is not a horizontal one because Bezeq itself is not currently a competitor in any of the markets that are relevant to this case (i.e., the infrastructure market or multi-channel TV broadcast the content market). Additionally, this is not a vertical merger between companies operating at different stages of production or marketing in the same industry, since Bezeq’s activity in the multi-channel TV broadcast industry consists only of holding of the Yes shares that it currently holds. This merger, which is neither vertical nor horizontal, can be referred to as a conglomerate merger. Conglomerate mergers are not infrequently considered to be mergers whose effect on competition is neutral, and occasionally, even beneficial, but there are a number of dangers to competition involved in a conglomerate merger. The doctrine that is relevant to this case is that of actual potential competition. This doctrine refers to future harm that will be caused to the market because a potential competitor will be removed from it as a result of the merger. In our case, the General Director based her objection to the merger on this actual potential merger doctrine, and the essence of her argument in this context is that without a merger, Bezeq can be expected to enter into the infrastructure market and the content market for multi-channel TV broadcasts as an independent competitor. Therefore, according to the General Director, the merger’s approval will lead to the loss of Bezeq as a potential competitor in these markets or in one of them, and will fix them as duopolistic markets. The Court found that two of the key conditions for establishing the potential competitor doctrine are present here – there is a reasonable likelihood that Bezeq, as a potential competitor, will enter into the multi-channel television infrastructure market and will provide IPTV services, and it has been proven that it has the technological ability and the economic incentive to do so in the short term. Additionally, it appears that Bezeq’s entry into the multi-channel television infrastructure market presents considerable advantages over the situation that would develop in the market if the merger were approved. The Tribunal, when adjudicating an appeal of a General Director’s decision, does not have absolute discretion to order as it wishes and it cannot stipulate conditions of a merger’s approval which, according to its own determination, does not give rise to reasonable risk of significant damage to competition in the relevant industry. The Tribunal therefore erred in subjecting merger to conditions after it found that the merger between Bezeq and Yes would not cause significant damage to competition. The Tribunal also erred in finding that the merger would not significantly damage competition. Such a risk does exist in this case. The main purpose achieved in preventing the merger is the addition of a competitor in the infrastructure market. This is a contribution to competition from a horizontal perspective through the weakening of the concentration in the existing duopolistic market, and it is hard to think of a structural condition in this case that would achieve this purpose. The behavioral conditions stipulated by the Tribunal cannot resolve the competition risk, because of the structural difficulty in ensuring such an arrangement where a single party (Bezeq) controls two out of three infrastructures in the market. The Court, therefore, cancelled the Tribunal’s decision and restored the General Director’s original determination opposing the merger

Frudenthal v. State of Israel

Facts: Appellant was convicted, in the Tel Aviv-Jaffa District Court, of trafficking in persons for the purpose of employing them as prostitutes, in violation of section 203A(a) of the Penal Law, 1977, as well as for the additional crimes of pimping for prostitution, threats, and false imprisonment. Appellant contested the District Court’s interpretation of the statutory provisions. Held: The Court held that the elements of the crime of trafficking in persons – sale and purchase – should not be interpreted according to criteria borrowed from civil law. As such, the Court refused to interpret those terms in their narrow sens. Rather, it held that every link in the chain of sale is an act of trafficking, so long as it permits people to be treated as property or chattel that can be transferred for trade

Erez v. The Special Conversion Court

The Special Conversion Court revoked the conversion of the Petitioner two years after she was converted by the court, primarily due to doubt as to the sincerity of the Petitioner’s intentions at the time of her conversion. The petition addressed the question of the competence of the Special Conversion Court to order the annulment of a conversion of a person whom it converted. The High Court of Justice (per Justice N. Hendel, Deputy President M. Naor and Justice E. Hayut concurring) held: At the relevant time, the Special Conversion Court’s authority to revoke the conversion of a person it had converted was not established by statute or regulation. However, the High Court of Justice held that just as a civil court has inherent power to set aside a final judgment– in rare, exceptional cases – so does the Special Conversion Court. In regard to judgments in civil cases, the causes for setting aside a judgment are very limited. Foremost among them is fraud, i.e., where the court is convinced that its original decision was based upon an act of deceit – for example, the presenting of incorrect information by one of the litigants. In the present procedural framework, the Court did not see fit to establish a list of concrete causes upon which the Special Court might revoke a conversion. Rather, it addressed only to the concrete case of the Petitioner, in which the Special Court acted in fundamental good faith in reaching the factual conclusion that the original judgment – the Petitioner’s conversion – was granted on the basis of misrepresentation, and that she actually had never intended to undertake religious observance. Under these circumstances, the Special Court’s power to revoke its judgment should not be denied. It was emphasized that this decision relates only to a conversion obtained by fraud. It should not be concluded from this judgment that the Special Conversion Court’s power to revoke conversions extends to other cases

Yerushalmi v. Polaris Imports Ltd.

Facts: The first respondent agreed to sponsor the first appellant to represent it in a motorbike race in Egypt. In the race the first appellant was seriously injured. There was no statutory duty to take out personal accident insurance for the first appellant, and no such insurance had been taken out. The main issue in the appeal was whether the first respondent had been negligent in not taking out insurance for the first appellant or at least in not ascertaining that the first appellant had taken out insurance for himself. Held: In general, where there is no statutory duty to take out insurance, one party to a joint venture will not be required by the tort of negligence to take out insurance for the other, unless there is a special relationship between them or a reliance of one party on the other. In this case there was no such special relationship or reliance

Tnuva Central Cooperative v. Raabi Estate

[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.] An appeal and cross appeal challenging the decision of the Tel Aviv District Court (Partial Judgment and Supplementary Judgment,) where the court partially granted a consumer class action suit, which was granted leave to be submitted in CC 10085/080 (hereinafter: Tnuva). The class action suit revolved around the misleading of the consumer public and the production of a milk product in violation of binding official standards that were in effect in the relevant period of time. The product was long life low fat (1%) milk to which silicone was added and which Tnuva manufactured and marketed from January 25, 1995 until September 6, 1995, without listing the silicone component on the product. (The silicone was added to the mild – in a total amount of approximately 13 million liters of milk – in order to remedy a problem of over whipping.) The court helf that the number of members of the class were about 220,000 people, and that members of this group were entitled to compensation for the autonomy infringement and that half (110,000 people) were also entitled to additional compensation for negative emotions experienced after learning that the milk they had been drinking contained silicone. Under the circumstances, the court found it fit to award compensation according to the mechanism set in section 20(c) of the Act, where ultimately it was ruled that Tnuva must pay a total compensation amount of NIS 55 million, which reflects an estimated personal damage of NIS 250 to each of the members of the group for the general damages, without distinction between group members who experienced negative emotions and those in whose regard a consumer report has proven that they did not experience such emotions. It was held that the only actual remedy would be a remedy to the benefit of the group, which ought be divided to three purposes: reducing the cost of the product; a fund for research and grants in the field of food and nutrition; and distributing free milk to needy populations. Additionally, a NIS 4 million partial attorneys’ fees were awarded (the heirs of the class action plaintiff were awarded NIS 500,000, the Israeli Council for Consumerism was awarded NIS 1 million, and the representatives of the class action plaintiffs were awarded NIS 2.5 million.) At this stage of the appeal, Tnuva no longer disputes that it mislead its consumers. However, according to its approach, the lower court’s decision must be reversed, or alternatively the amount of compensation it was obligated to pay must be drastically reduced. The essence on Tnuva’s arguments is that its misleading caused no real and compensable harm to any of the group members, and sadly this is a negligible matter that does not justify compensation. Even had any damage been caused, no causal connection was proven between the claimed harmed and the misleading it did. In the cross appeal, the class action plaintiffs claim that a higher compensation should have been awarded. The Supreme Court (in an opinion written by Justice E. Hayut, with Justice I. Amit and U. Vogelman concurring) granted the appeal by Tnuva in part and rejected the cross appeal, for the following reasons: Misleading consumers as a class action tort: The legal field where the outcome of Tnuva’s actions must be examined in this case is tort law, to which section 31(a) of the Consumer Protection Act refers. In other words, in order for a plaintiff according to this consumer tort would be awarded financial compensation they must show damages as well as a casual connection between the tortuous conduct and the alleged harm. However, when a class action claim is concerned, the court must integrated the general tort law and principles and rules taken from class action law, among others, by softening the requirements necessary for showing the harm caused to group members. Therefore, the court must not limit itself to examining the remedy under general tort law which apply to individual suits and it must rather fold into its decision principles and rules taken from class action law. Negligibility: Indeed, not every case where there was a flaw in the listing of a food product’s ingredients this would justify compensation for autonomy infringement or negative emotions and there may certainly be cases where despite the existence of a particular flaw in the listing of the product’s components this would not justify compensation when the harm constitutes de minimis… in the words of Justice Naor. However, this does not benefit Tnuva, because in this case the lower court’s finding that under the circumstances the consumer’s autonomy to decide whether he wishes to put into his body milk that contains silicone or not was well founded. And as the lower court correctly held, this is not an infringement that constitutes de minimis, from the group-class action perspective. The court noted that the rule regarding de minimis does not apply in its plain meaning on the damage element of a typical class action suit because “a central characteristic of it is the accumulation of small damages that independently would not have led to legal proceedings.” This in approach that has precedent in the jurisprudence of this Court. Still, it is important to note that the fact that a large group of plaintiffs argue in a class action suit for the accumulation of small damages, does not necessarily in itself negate the possibility of de minimis in the group context as well. Even in a procedure of a class action the answer to the question when is there a negligible harm that does not justify compensation depends on the circumstances of the case and it may change considering the entirety of circumstances involved. Autonomy infringement: in CA 2781/93, the Dakka case, Israeli law first recognized that general damages involving autonomy infringements is a “damage” as understood by the Torts Ordinance and that as such it warrants compensation. The fundamental right to autonomy, as the Court held in Dakka is the right that every person has “to decide about his actions and his desired according to his choices, and to act according to such choices.” This right, it was held, encompasses all the central aspects of one’s live, and it results, among others, in “each person having liberty from intervention in his body without his consent.” It was additionally held that that liberty is one of the expressions of the constitutional right to dignity granted to each person and enshrined in Basic Law: Human Dignity and Liberty. In contrast to Tnuva’s argument, recognizing this cause of action of autonomy infringement is not limited and should not be limited to cases of medical malpractice or bodily autonomy violations alone. The principles at the basis of recognizing this cause of action and the constitutional right this recognition is designed to protect justify in the appropriate cases awarding compensation for autonomy infringement even when other torts, such as the consumer tort in our case, exist. The causal connection requirement: Indeed in the Barzani further hearing, the Court ruled that the requirement of a causal connection established in section 64 of the tort ordinance applies to consumer torts in terms of misleading advertising as well as cases where such tort constitutes cause for a class action suit. Still the Court also ruled there that to the extent that consumer torts are concerned the reliance requirement that derives from the causal connection requirement must be interpreted “in a broad context, to include more than mere direct reliance” but rather “an indirect causal connection through a proper chain or causation from the advertisement to the consumer.” It was also held in Barnzani that a process for a class action suit based on the instructions of chapter F1 of the Consumer Protection Act and the regulations made by it in this matter (instructions that have since been repealed by the Class Actions Suit Act) may require a softening of the means of proof considering the unique nature of this procedure and that “the court may establish proper means, as it sees fit, for the ways in which the element of causal connection between the misleading advertisement and the damage caused to each group member including the harm caused to each and every one of them, may be proven.” However, Tnuva’s attempt to rely on the Barzani rule and argue that in this case, too, no causal connection between Tuva’s conduct and the general damage for which it is sued was not proven, must be rejected and this for several reasons. First, Tnuva raised the claim at the stage after the class action was approved, and to the extent it addressed the class as such it must be remembered that about the three years after the decision in the Barzani further hearing the Class Action Suit Act was enacted to aggregate the principles and rules that must be applied to class actions in their various forms. Among others, the Act permits granting remedies to the benefit of the public in appropriate cases where it is impractical to prove the harm caused to each and every group member and therefore also the causal connection between that harm and the conduct of the damaging party (section 20(c) of the Act.) This is the guideline adopted by the lower court and under the circumstances the requirement to prove, for each and every individual member of the group, the causal connection between Tnuva’s conduct and the harm is an overly burdensome requirement. Second, to the extent that the consumer tort upon which the class action suit is based is a misleading through failure to act (in the form of failure to disclose, as in the case at hand, as opposed to active misleading as was the case in Barzani) this may justify softening and flexibility in terms of proving the causal connection between the tortuous conduct and the claimed harm. Third, as opposed to the Barzani case, where monetary damages were sought (differences in rate), the damage sought in our case goes to general damage of autonomy infringement. For this type of damage, it was ruled there is no need to prove causal connection between the failure to disclose and the harmed party’s choice. However, even had it been decided that under the circumstances here proof that members of the group would not have purchased the milk had they known it contained silicone was required, it is possible that the requirement for a causal connection would have been satisfied in the class action suit here by finding there was a “class causal connection.” Such class causal connection maybe be based on the assumption that the class members, and sadly most of them, would have responded in the negative had they been asked in advance whether they would consider consuming milk to which Tnuva added, in violation of a binding standard, an artificial additive of which they are unaware in order to fix a problem of over whipping. However, the Court rejects the objective approach for evaluating compensation for autonomy infringement. The Court’s approach is that the compensation for autonomy infringement is granted for a subjective outcome damage that is expressed through emotions of anger, frustration and similar additional negative emotions caused by the damaging party’s conduct. This conclusion leads to another conclusion which is that there is no place to divide the compensation for autonomy infringement and the compensation for suffering and negative emotions caused to the harmed party due to that infringement (as opposed to general damage that relies on other harms in the same claim.) therefore, where it was proved that some members of the class remained indifferent to the autonomy infringement, there is no place to award compensation for this type of damage. In this case, the court’s finding that the class includes 220,000 members is a careful and conservative finding in which we must not intervene. However, the data presented by the class action plaintiffs themselves (statistical data and expert opinion) there is foundation for the conclusion that 30% of the group members remained indifferent to the silicone addition in the milk. Therefore, they did not experience any negative emotions even once they learned that the milk they consumed contained silicone and that Tnuva failed to detail this ingredient on the packaging. Therefore, the extent of the class entitled to compensation for autonomy infringement that caused them negative emotions includes only 154,000 people. This is a group that consists of more than 100,000 people, who cannot be identified or located. Even had it been possible to locate them there is doubt as to whether it is appropriate to order that each and every one of them – or even some of them – would submit affidavits to detail the depth of the negative emotions they experienced, in order to make it possible to award them compensation according to one of the mechanisms established in section 20(a) of the Class Action Suit Act. Once it is impossible to determine the harm based on individual evidence or an accurate calculation, and once it is impossible to identify the members of the group entitled to compensation, we are left with the compensation mechanism established by section 20(c) of the Class Action Suit Act, which permits setting a total compensation through estimates to the benefit of the entire class or to the benefit of the public. The compensation amount: In light of the diversity in class members in terms of their consumer habits of the long life milk that contained the silicone and in light of the additional characteristics of autonomy infringement in this case, including the severity of the harm (when one can imagine worse harms) and the limited period of time in which group members experienced negative emotions, the Court believed the sum of NIS 250 is acceptable as a suitable amount for setting the standard individual compensation. This sum, multiplied for the number of class members who suffered the outcome damage of autonomy infringement brings us to a total compensation amount of NIS 38,500,000 (250 X 154,000). Therefore, the total compensation the Tnuva must be obligated to pay in this case according to the formula adopted in the decision is a sum of NIS 38.5 million, valued for the day the lower court’s decision was handed down (October 7, 2008). The manner of dividing the compensation: Under the schedule set in section 20 of the Class Action Suit Act, priority must be given as much as possible to the mechanisms of compensations that fit this order as such, and even when coming to award compensation under section 20(c) in the absence of possibility to award it under sub section (a) and (b), it must be attempted as much as possible to design the mechanism for allocating the collective compensation in a manner that allows some link between the group of compensated parties and the group of harmed parties. Under the circumstances, the Court has concluded it is best to do without allocating part of the compensation to the discount arrangement and instead to focus on the two other goals set by the lower court, which serve worthy purposes to benefit the public. The part missing from the discount arrangement (22%) would be divided equally between the two goals in the following manner: the research and grants foundation 44.33% and provision of milk products to the needy 55.66%. As a result of the reduction in the compensation amount, the award Tnuva must pay the class action plaintiffs and the attorney’s fees it must pay their representative were also reduced. The award to Reevi’s heirs stands at NIS 300,000. The award for the Israel Consumer Council stands at NIS 550,000 and the rate of the attorney’s fees to the plaintiffs’ representatives stands at NIS 1,500,000

Jerusalem Open House for Gay Pride v. Jerusalem Municipality

Facts: The Jerusalem municipality (the respondent) provides financial support to various institutions throughout the city. Institutions requesting funding are required to apply to the different municipality departments that distribute the funds, in accordance with prescribed criteria. The appellant is a registered charity that works for the gay community in the city; it operates a community center in Jerusalem for the gay community, and conducts a series of annual gay pride events in the city, including the annual gay pride parade. During the years 2005 through 2008, the appellant requested financial support from the respondent by filing applications with the respondent’s Culture Department (requesting assistance through both the ongoing support track and the projects track) and from the Social Affairs Department (requesting assistance through the track involving promotion of the status of women until 2007 when all such support was terminated, through the community councils and centers track, through the youth activity track, and from the Division for Youth and Young Adults). These applications were filed in accordance with the criteria established for assistance. All of the requests were denied, on grounds relating to the tests each track established to determine receipt of support. The appellant petitioned the Court for Administrative Affairs in the Jerusalem District Court, on the grounds that the municipality’s decisions were discriminatory. The lower court upheld the municipality’s decisions regarding the denial of funding, and the present appeal followed. As a procedural matter, the decisions regarding all four years are being adjudicated together. Held: The appellant’s discrimination claims must be evaluated in light of a local authority’s duty to distribute funds on the basis of equality. This duty is identical to the statutory duty imposed on state entities regarding the distribution of funds to public institutions through section 3A of the Foundations of the Budget Act. Section 3A dictates that funds must be distributed to categories of institutions rather than to individual institutions and that all decisions regarding the recipients of government funding must be based on clear, transparent, and equal criteria. Thus, all such decisions must be based solely on relevant considerations, and no improper motivations may be involved; the refusal to give weight to relevant considerations is equivalent to affirmatively considering completely irrelevant factors. Furthermore, even a decision based on relevant grounds can be unreasonable if the outcome shows that substantive equality has been denied. For example, statistical outcomes may be particularly relevant when a decision is reached by a collective body and motivations cannot be determined. Relevancy is determined on two levels – first through a determination that the boundaries of the group affected by the decision had been delineated on relevant grounds (a determination which is to be based on constitutional criteria for equality), and second that all those within the group were being treated equally (a determination which is to be based on administrative law criteria for equality). In light of these principles, a review of the various criteria relied upon in denying the appellant funding shows that the municipality’s decisions were defective only in one respect. Thus, the appeal can be allowed to proceed only with regard to the decision to deny the appellant funding through the community councils and centers track. That denial was based on a rule that only centers providing services on a geographic-regional basis were entitled to receive funding, meaning that the unique needs of the geographically dispersed gay community would not be met by any source of financial support from the municipality. The rule therefore gave rise to a denial of substantive equality - particularly in light of the fact that other similarly dispersed communities were receiving support through various municipal departments. As such, the Court awarded appellant the support it had requested through this track. The remedy provided is an expansion of an existing criterion used for the provision of support through the community councils and centers track, rather than the addition of a new one. Appeal allowed