Case Number

HCJ 7669/15

Date Decided

4-18-2016

Decision Type

Original

Document Type

Full Opinion

Abstract

The Applicant, the leader of the Northern Faction of the Islamic Movement in Israel, was acquitted by the Magistrates Court of the offense of inciting racism, but was convicted of the offense of inciting violence. The Applicant was accused of the offenses due to a sermon he gave in 2007 to an audience of approximately one thousand people near Jerusalem. The court imposed a sixteen-month sentence upon the Applicant, eight months of which were custodial. Appeals were filed against the judgment by both of the parties. The District Court convicted the Applicant of the offense of inciting racism. The Applicant was also convicted of the offense of inciting violence, by majority opinion. The case was remanded for sentencing to the Magistrates Court which imposed an eleven-month custodial sentence and an eight-month suspended sentence. The Parties' appeals of the sentence were denied, hence this Application for Leave to Appeal.

The Supreme Court (Rubinstein DP., Baron J. concurring, Joubran J. dissenting), granted leave to appeal. The Court denied the appeal of the judgment, but granted the appeal of the sentence in part, ruling as follows:

Majority: With regard to the offense of inciting racism, due to the Applicant's statement that Jews knead the dough of Passover matzah with the blood of Christian children: The Applicant is a well-known figure in Israel and the Arab world, and is one of the religious leaders of the Israeli Muslim community. In the past, he was tried and convicted for security offenses and harming security forces, for which he was imprisoned. His speech was delivered before a large, angry, agitated crowd near the Temple Mount. It is clear that the sermon was organized and planned, and that the public atmosphere was explosive in light of a claim of harming the Al Aqsa mosque. One cannot view what was said in isolation from the broad context – the Israeli-Palestinian conflict, in general, and the Temple Mount conflict, in particular. The Applicant's choice to mention one of the most blatant symbols of hatred of Jews – the "Blood Libels" – in that charged atmosphere, and to tie it to a call to protect the Al Aqsa mosque, leads to the inevitable conclusion that the purpose of his words was to incite racism.

With regard to the offense of inciting violence, due to the Applicant's call to embark on an intifada to liberate Jerusalem and the Al Aqsa mosque: The offense of inciting violence is conditioned upon the publication, by its contents and circumstances, presenting a real possibility of resulting in acts of violence. There must be a connection between the publication and the potential outcome, which must meet the real-possibility criterion. A court must examine the case in its entirety, without determining the primary criteria in advance. The Court held that, inter alia, consideration should be given to the identity of the publisher and to the public atmosphere, to the type of violence concerned, to the scope of the group exposed to such violence, to the scope of the publication and its target audience, to the context, and to the location and the medium of the publication. Who said, what was said, where was it said, in what manner was it said, to whom was it said, and in what framework was it said?

The Applicant is a well-known, influential figure among the Arab public, who delivered a speech to an angry crowd near the Temple Mount at Friday prayers -- the Muslim's holy prayers -- during a period in which the streets of Jerusalem, particularly in the Arab neighborhoods, were roiled. The general context of the sermon, the repeated use of the word "blood", and his statement that "we will meet God as martyrs (shahids) in the area of the Al Aqsa mosque", make it difficult to err as to the intention of his words. We are not dealing with a theoretical discussion, but rather with a practical call. The Applicant's words in real time testify as to his intentions: "It is possible that they will come to me and tell me you are inciting. They want to destroy our Al Aqsa, and they are coming and telling me you are inciting. So, my brothers, I am telling you..." The combination of the content of the statement and the circumstances indeed fulfills the requirement of a real possibility that the Applicant's words would lead to violence, for the purpose of grounding the elements of the offense. In light of the above, the appeal against the judgment was denied.

As to the punishment, given the increasingly widespread expressions of ideologically based violence and hatred, the case-law tends toward strictness in order to set an example, and to serve as an expression of deep contempt and disgust at such statements and actions. Moreover, the case concerns a very influential religious and spiritual leader. Nevertheless, some consideration should be given to the fact that in the nine years that have passed since the event, the Applicant has not committed additional, similar offenses, and in light of the punishment policy current at the relevant time. Some leniency would, therefore, be justified. The Applicant's custodial sentence was, therefore, set at nine months, with the remaining term of suspended as ordered by the lower court. The dissenting justice was of the opinion that the Applicant's conviction on the offense of inciting racism should be upheld, but that he should be acquitted of the offense of the inciting violence, while the custodial sentence should be replaced by a term of community service.

Keywords

Constitutional Law -- Freedom of Expression, Criminal Law -- Incitement

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