Case Number

CrimA 9203/18

Date Decided

7-14-2019

Decision Type

Appellate

Document Type

Full Opinion

Abstract

This was an appeal of a judgment of the District Court that declared the Appellant extraditable to the United States. An indictment was filed against the Appellant with the Federal District Court of the State of California for producing child pornography, coercing and soliciting a minor to perform sexual acts, extortion, and distributing child pornography. The dispute in the proceeding revolved around a number of questions: whether the “center of gravity” of the offenses attributed to the Appellant is in the United States or in Israel, the implications of Basic Law: The Nation State, whether there was a delay in the Appellant’s extradition proceedings to an extent that amounts to a violation of public policy or a miscarriage of justice that justify not extraditing, whether the Appellant’s extradition amounts to selective enforcement, and whether there is a health justification preventing the Appellant’s extradition.

The Supreme Court (per Justice U. Vogelman, Justices D. Barak-Erez and Y. Willner concurring) denied the appeal.

The Court addressed the normative framework of extradition law, stating that there is no dispute that the preliminary conditions for extradition were met: there is an extradition treaty between the Government of Israel and the Government of the United States; the offenses that are attributed to the Appellant are extradition offenses, within their meaning in the law; and the evidence presented in the Appellant’s matter met the evidentiary threshold required for the purpose of extradition.

As to the center of gravity of the offenses, inasmuch as both states have jurisdiction to try the Appellant, the decision as to which state takes precedence is made in accordance with the majority of the contacts of the offenses, in other words, the location of the “center of gravity” of the offenses. In general, preference will be given to the physical location where an offense was committed, but each case must be examined on its merits and in accordance with its contacts. The center of gravity in this case is in the United States. Inasmuch as the offenses were perpetrated in Israel, the investigation was conducted in Israel, and the Appellant is an Israeli citizen, there is a contact with Israel. However, offenses of this kind, perpetrated by the Appellant via a computer, are not limited to a narrow territorial area. In these circumstances, it is proper to find the center of gravity based on the location of the victims, who were in the United States, and upon the protected values that were infringed, which were primarily located there. Even if the Appellant committed similar acts in regard to Israeli victims, that is not sufficient to divert the center of gravity, inasmuch as those offenses were mainly direct acts against victims in Israel that were not limited to the on-line medium, and the Appellant already stood trial for those offenses.

Indeed, the management of the proceeding is not expected to be complicated, since the Appellant chose to admit to the acts attributed to him. However, this does not nullify the connection between his acts and the United States and the interest of having him stand trial there. The victims, whose naivety was abused by the Appellant are entitled to have their voices heard in their language and in their country, and the Appellant’s interest to conduct the proceeding in Israel does not prevail. The enactment of Basic Law: The Nation State does not tilt the scales against extraditing him. The Basic Law is not meant to protect offenders in Israel, and it has not changed the normative situation that allows extradition from Israel. Furthermore, it has already been held that the Extradition Law is not unconstitutional, and the normative situation has not changed with the addition of Basic Law: The Nation State.

One exception to extradition is the violation of public policy, one of the forms of which is delay. In this case it cannot be said that the delay in the extradition proceedings was unusual to a degree that would justify not extraditing the Appellant, even if part of the delay was not inevitable, since at issue is not an unjust, disproportionate outcome. Indeed, the right to due process also applies in extradition matters, however, it was not found that the Appellant’s right to due process was violated in the conducting of the extradition proceeding due to the period of time that elapsed since the acts were committed, or, at least, was not violated to a degree that would justify not extraditing him. The Appellant’s argument of selective enforcement in comparison with the Anonymous case was rejected in the absence of proof of discrimination. In any event, even assuming that the enforcement was somewhat different, that does not constitute a severe flaw in the authority’s conduct that would justify intervention. It cannot be said that the Appellant’s medical condition – a high degree of autism and personality disorders that make him unable to conduct himself independently ‒ prevents extradition or standing trial. The claim regarding the statute of limitations of the extortion offense having lapsed was denied, since both in terms of Israeli law and in terms of the law of the State of California, the statute of limitations had not lapsed.

Keywords

Constitutional Law -- Basic Law: The Nation State, International Law -- Extradition

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