Case Number
HCJ 909/08
Date Decided
12-29-2009
Decision Type
Original
Document Type
Full Opinion
Abstract
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. JUSTICES
Keywords
Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Conscientious Objection, Sale Law -- International Sale of Goods
