OFFENDERS IN ISRAEL: 1995 REPORT
EXTRADITION IN ISRAEL
By Ruth Rabin, Former Director, Dept. of International Affairs, Ministry of Justice
and Irit Kohn, Director Dept. of International Affairs, Ministry of Justice
Extradition in Israel is governed by the Extradition Law, regulations and court decisions. International customary law applies only insofar as it is compatible with Israeli law and insofar as it has been incorporated into the body of that law.
Israel is signatory to one multilateral extradition treaty, the European Convention on Extradition, having signed in September, 1967. Israel has concluded seven bilateral treaties including treaties with Australia, Belgium, Canada, Fiji, South Africa, Swaziland and the United States.
Passive Extradition: Extradition from Israel Requested by a Foreign Country
Section 1 of the Extradition Law lays down the general principle that a person found in Israel shall not be extradited to another country except under the provisions of the Extradition Law. In order to institute extradition proceedings, the first step is to secure the presence of the person sought, either by provisional or full arrest.
Provisional Arrest and Full Arrest
A request for extradition may be preceded by a request for provisional arrest. When the appropriate authorities in Israel have decided that the situation warrants the provisional arrest of the designated person, that person may be detained before the formal request arrives.
The request for provisional arrest usually contains all the documents specified in the treaty between the two countries. The Extradition Law, Section 6, states that the Attorney General or his representative can order the provisional arrest of the designated person if he has reason to believe that the designated person is extraditable, that a request for his/her extradition will be submitted and that the arrest is necessary to ensure the extradition.
Under Section 6 of the Extradition Law, a person provisionally arrested must be brought before a Magistrate's Court within 48 hours.
Under Section 7 of the Extradition Law, the magistrate may then order him/her to be held in custody for up to 15 days pending receipt of the petition for extradition, and may extend the custody for a further 15 days. Upon special application by the Attorney General, the magistrate may extend the requested person's arrest up to a maximum, aggregate period of 60 days. Once the petition has been filed in the District Court to have the person sought declared extraditable, then pursuant to Section 5 of the Extradition Law, the District Court may order that the person sought be held in custody until the end of the proceedings.
Pursuant to Section 22 of the Extradition Law, at any time during extradition proceedings the requested person may appeal the decision to continue his arrest by petitioning the court for his/her release.
The formal request for the wanted person's extradition must be submitted through diplomatic channels. The Ministry of Foreign Affairs transfers the request for extradition to the Department of International Affairs of the Office of the State Attorney in the Ministry of Justice for further action. Under Section 3 of the Extradition Law, if the Minister of Justice determines that there is a proper case for extradition proceedings, he will order that the requested person be brought before a District Court in order to determine whether he/she is extraditable.
Judicial proceedings begin once the Attorney General submits the extradition petition to the District Court. (see: Section 4, Extradition Law). The requested person and his/her attorney are then given an opportunity to examine the petition and all of the documents filed with the court. Arguments are presented by both sides before the District Court.
Any evidence which the defense may wish to introduce is limited to establishing one of the exceptions to extradition under Sections 8(1)-(3) and 10(1) and (2) of the Extradition Law, or the non-fulfillment of one of the threshold requirements set out in Sections 2, 16, 17 and 21(1). The defense is forbidden to introduce evidence solely to refute the prima facie case against the requested person.
The court listens to the arguments of each side to help it verify whether the evidence is sufficient and admissible, the Rule of Speciality is applicable, and double criminality exists. There is a difference between the evidence required when the person sought is a convicted felon and the evidence required when he/she is a suspected felon. Where the requested person has already been convicted, prima facie evidence need not be shown (but the State must show that the rules of speciality and double criminality have been satisfied). In contrast, when a requested person is only accused of committing a crime, the State must show a prima facie case.
Once arguments have been completed, both parties sum up. If the court is convinced that the terms of the Extradition Law have been met, namely, that there exists sufficient, admissible evidence to try the requested person had he/she committed the same act in Israel, then the court will declare him/her extraditable to the requesting state for those specific crimes. If the Law's provisions have not been met, the court will dismiss the petition under Section 9 of the Law.
The requested person may appeal the decision declaring him/her extraditable. Once the Supreme Court has upheld the decision of the District Court, the Minister of Justice under Section 18 may order the extradition of the person sought. Under Section 19(a), the Minister of Justice has 60 days to exercise his discretion whether to order the extradition to be carried out. If the defendant believes that the Minister has not exercised his discretion properly in this regard, he may challenge the decision in the Supreme Court, sitting as the High Court of Justice.
Section 2 of the Extradition Law sets forth the threshold requirements for extradition.
(1) Existence of a Treaty
Section 2(1) of the Extradition Law requires the existence of a treaty and permits extradition only where there exists an agreement between Israel and the requesting state providing for reciprocal obligations to extradite requested persons.
(2) Extraditable Offenses
Extradition from Israel can only be effected if the offense for which the person sought is an extraditable offense. Section 2(2) defines an extraditable offense an offense that is not of a political character and is listed in the Schedule attached to the Extradition Law.
Section 2(1) of the Extradition Law requires that the existence once, of an agreement between Israel and the requesting state that provides for reciprocity in the surrendering of criminals. This requirement may be fulfilled in the requested state either by extraditing or prosecuting the fugitive, or carrying out his/her sentence.
Any person may be extradited from Israel except for a person who was an Israeli national at the time of the commission of the offense. However, to ensure that an Israeli national does not escape prosecution, Sections 7A and 10A of the Penal Law, 5737-1977 (as amended) extend the jurisdiction of the Israeli courts to hear cases in which an Israeli national is alleged to have committed a crime abroad, thus adhering to the rule "aut dedere aut punire".
(5) Double Criminality
Section 2(2) of the Extradition Law states that a person may be extradited if:
"he is accused or has been convicted in the requesting state of an offense of a non-political character and which, had it been committed in Israel, would be one of the offenses set out in the Schedule to this Law."
This means that the crime must be an offense both in the requesting and the requested state. This section is thus the source for the requirement of double criminality.
Although the criminal act attributed to the person sought must be an offense under the criminal laws of both states, this does not require that the same terminology be used in describing the offense.
In conclusion, all of these requirements existence of a treaty, a non-political offense, an extraditable offense, reciprocity, nationals and double criminality are threshold requirements. Each requirement must be fulfilled if the Minister is to initiate proceedings.
Once the court decides that all of the threshold requirements have been fulfilled, it should determine that none of the limiting factors listed in Sections 8, 10 , 11, 17, and 21(l) of the Extradition Law exist.
The limiting factors prohibit extradition where:
- the death penalty is sought;
- the statute of limitations has run out;
- the person sought has been pardoned;
- the extradition of the requested person would subject the person to a second trial for the same offense in the requesting state;
- the person will be tried for offenses other than those for which he was extradited;
- the request arises from racial or religious discrimination; or
- the request involves a fiscal, military or political offense.
Under Section 9 of the Extradition Law, in addition to the other provisions of the Law discussed above, the court must be convinced, before it declares the requested person extraditable, that there is a prima facie case which would be sufficient for committing him/her for such an offense in Israel.
Section 12 of the Extradition Law provides that the court which hears the petition shall not reject testimony as evidence only because it was taken in a foreign state. In addition, the court will admit in an extradition proceeding a document or other form of evidence that has been designated admissible by an agreement between Israel and the other state.
In Attorney General v. Friedman, C. A. 579/86, 40(4) P.D. 301 (1986), the court held that the quantum of the evidence had to be sufficient for an indictment but not for a conviction. The Court cautioned against turning an extradition hearing into a hearing dealing with the guilt or innocence of the defendant.
After a hearing, the District Court can declare the person sought extraditable in accordance with Section 9 of the Extradition Law. Thereafter, the person sought has the right to appeal to the Supreme Court. (See Section 13 of the Extradition Law.) The person sought has a further remedy of petitioning the Supreme Court, sitting as the High Court of Justice, at any point in the proceedings on the basis of an equitable claim.
Discretion of the Minister of Justice
The Minister of Justice exercises the executive function in the two-pronged extradition process judicial and executive) described above and exercises his powers at both the initial and final stages of the that process. His decision may be challenged in the Supreme Court, sitting as the High Court of Justice.
Israel's Supreme Court, sitting as the High Court of Justice, ruled that only in an "extraordinary" case could the Minister ignore the District Court's decision that the person sought was extraditable.
Once the Minister of Justice has signed the order of extradition, the procedure by which a person is transferred from one country to the other is not laid down by law. Rather, each extradition treaty specifies the particular procedure to be followed.
Active extradition refers to the situation where Israel requests another state to extradite a person suspected or convicted of a crime. The focus of the Extradition Law is almost entirely upon passive extradition, so that when Israel seeks to extradite a person she is guided by the treaties to which she is party.
International Cooperation and Extradition
International cooperation in the criminal field raises many interesting points which we shall try to clarify.
The Effect of Differences between Legal Systems
Extradition by its very nature arises out of the common desire of the international community to cooperate in combating crime, but this desire is complicated by the differences between legal systems and rules of evidence. For example, one of the basic rules of evidence in Israel is the right to cross-examine, whereas other systems do not allow this right but safeguard the accused in other ways. That the requesting state does not permit cross-examination is not an obstacle to Israel extraditing to it because, by signing an extradition treaty with that country, Israel has determined that its criminal justice system, although different, is adequate.
Problems may arise when a trial must take place in lieu of extradition and it may be necessary to take the testimony of a witness in a requesting country that does not permit cross-examination. In such a situation, it is essential to reconcile the differences of judicial practice and Israel may try to obtain the consent of the requesting country to what is for it an 'abnormal' procedure.
Another area of transnational disparity is the degree of protection that countries afford their nationals. Some countries do extradite their own nationals, others do not. With respect to the latter, the crucial point is how it defines "a national". At one end of the very broad spectrum of possibilities, "a national" may be only someone who had nationality prior to the commission of the offense. At the other end, some countries define as nationals persons who acquired nationality only after the extradition order had been issued but before it was executed. Israel has taken a middle position on this question. Only those who were citizens before the offense will not be subject to extradition but this does not render them immune from prosecution for the offense in Israel, since Israel has no wish to absolve them from their criminal responsibility.
Holding a trial in a country other than where the offense was committed may present strategic, procedural and practical problems. For example, many of the witnesses must be brought from abroad, perhaps even from more than one country. Some witnesses may require special custodial care. Other witnesses may add little to the substance of the case but may be required to establish the admissibility of documents which have been in their possession. Under Israeli law, the defendant must have the opportunity to cross-examine every witness, even merely technical ones, so that the cost of holding such a trial may become prohibitive.
Moreover, even when it is possible to use international legal assistance and letters rogatory, Israel faces the dilemma that certain legal systems do not allow a visiting lawyer to directly question or cross-examine the witness. In such a case, Israel may not be able to fulfill the requirement under its internal law, that the defendant have the opportunity to cross-examine. As with the first problem in this section, to date only ad hoc solutions have been found.
Trials in Absentia
Trials in absentia are one approach to the problem of a defendant who tries to frustrate the criminal justice system by absconding before or during the prosecution. Some countries allow a trial to continue if the defendant absconds during the course thereof.. Others conduct an entire trial in the absence of the defendant, subject to the right of retrial upon his/her return.
Conflicts arise in the sphere of extradition when the requested state is asked to honor a conviction or to enforce a sentence emerging from a trial in absentia, when its own laws do not permit such trials. The Supreme Court recently considered the case of two Israeli nationals who were indicted in Illinois, USA, for a number of offenses, including attempted murder, and fled a few days after the trial began. The American court proceeded to conduct the trial in the absence of the defendants but with counsel for the defense present. Both defendants were convicted and sentenced to 25 years imprisonment. The USA has asked Israel to extradite the defendants or to execute the sentence in lieu thereof. The key issue before the Israel Supreme Court was whether Israel may honor such a request when its own law does not allow trials in absentia for felonies. The Supreme Court upheld the imposition of the sentences in Israel.
The Rule of Speciality
For the Rule of Speciality to be properly observed, the requested state should specify the charges for which the requested person may be tried, sentenced or imprisoned by the requesting state and, once the felon has been extradited, the requesting state should notify the requested state of the result of judicial proceedings in the former. The protection of the Rule of Speciality may be invoked by both the defendant and the requested state, although their reasons for doing so may differ. The requested state might do so, for instance, to ensure adherence to the requirement of double criminality, whereas the defendant might do so to avoid prosecution for a crime committed prior to that for which he was extradited. The same two parties may also waive the protection of the Rule for different and clashing reasons. For example, the defendant might want to plead guilty to charges outstanding against him/her, even though such offenses would not be extraditable, whereas the requested state might not wish to accede to such a plea.
Most treaties and most states prohibit the requesting state from trying a person for a criminal offense committed prior to the one for which he has been extradited. This is not the case regarding civil suits unless the laws of the requesting state specifically prohibit such suits. Whether immunity from civil prosecutions is desirable is open to debate. A state may not wish to hinder its citizens in their efforts to pursue civil claims against a person, even though he/she would not be in its jurisdiction but for the extradition on another offense. Moreover, why should an extradited felon be shielded from liability merely because he/she has been extradited? For example, a man convicted of murder and sentenced to life imprisonment is extradited to Israel for the sentence to be executed. His wife wants to sue for child support. If he were immune from civil proceedings, she would be unable to use the legal system in the requesting state to obtain that support. On the other hand, the state should not become the tool of unscrupulous citizens who might attempt to use the extradition process to bring someone into the state's jurisdiction apparently on criminal charges when the real purpose is to institute civil proceedings. This is an issue which challenges the lawmakers to strike a delicate balance between protecting the rights of its citizens and the rights of the extradited person.
We have summarized Israel's extradition procedures, adducing both Israeli law and its treaty obligations, and have discussed how Israeli courts have dealt with the legal issues arising in certain cases.
The international nature of extradition proceedings gives rise to a number of intriguing issues. A coherent framework within which to respond to these dilemmas would be helpful to legal practitioners and to all concerned.