Case Number

CA 2144/08

Date Decided

11-14-2010

Decision Type

Appellate

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

An appeal against the decision by the Jerusalem District Court whereby the State’s request to declare the appellant eligible for extradition to the United States, and this in order that he be criminally prosecuted for serious sex offenses against minors which he allegedly committed in the 1980s, must be granted. Until 1984, when he moved to Israel, the appellant was a resident and citizen of the United States. The indictment against the appellant was submitted in the United States in 1985, and it alleges he committed the sex offenses between 1980 and 1984. While the offenses were committed, and at the time that the indictment was submitted, the offenses in the indictment were considered “extraditable offenses” under the Israeli Extradition Act. However, they were not included in the definition of “extraditable offenses” under the extradition treaty between Israel and the United States, and thus Israel denied the United States’ 1985 extradition request. Only in 2007 the amendment to the extradition treaty, which expanded the definition of “extraditable offenses” to include offenses such as alleged in the relevant indictment, came into effect and the United States again requested that the appellant be extradited to it. The appellant was arrested and a petition to declare him eligible for extradition to the United States was granted. Thus this appeal. The appellant’s main argument is that in the 22 years that passed since the indictment was submitted against him in the United States the offenses on the basis of which his extradition to the United States was requested have passed the statute of limitations under Israeli law. Therefore, the extradition request must be denied due to the statute of limitations exception under section 2B(a)(6) of the Extradition Act. The appellant further argues that he must not be considered as someone who evaded or fled justice for the purposes of applying section 94A of the Criminal Procedure Act, as he did not flee the United States and did not hide in Israel. In addition to all this, the appellant maintains that from an international law perspective, for reasons of absolution, criminal justice estoppel and the public interest – under their meaning within Israeli law – it is wrongful to extradite him to the United States.

The Supreme Court (in a decision authored by Justice A. Procaccia and joined by Justices E. Rubinstein and M. Naor) granted the appeal, for the following reasons:

The amendment to the treaty in terms of its temporal application and impact on the appellant’s case: The treaty was amended in 2007 by way of re-categorization of “extraditable offenses” and it directly impacts the procedure of enforcing the criminal norm upon the requested but does not impact the actual criminal liability that is attributed to the appellant. Therefore, the outcome of the amendment in terms of its temporal application does not conflict with the interpretive presumption that prohibits retroactive criminal legislation and bars restricting the principle of legality in criminal law and procedure. The treaty amendment in the case at hand applies actively on an extradition procedure that effectively began as a result of the amendment and for which it waited many years. In such circumstances, the treaty amendment’s temporal application is active application and it does not pose any difficulties in terms of a potential violation of the appellant’s rights in this particular context. Therefore, to the extent that the temporal application of the amendment to the offenses attributed to the appellant, there is no flaw to be found in the extradition process.

Exceptions to extradition: section 2B(a)(7) of the Extradition Act – the absolution of the requesting state: In order for the absolution exception to be met, the requesting state must clearly and unequivocally express its position that it withdrew from the possibility of prosecuting the wanted person and that it no longer awaits the opportunity to do so. In our case, the “absolution” exception to extraditing the appellant to the United States was not met. Although the United States’ authorities acted to close the cases against the appellant, they did leave certain legal procedures pending, seemingly out of expectation that once the obstacles to extradition be lifted through a proper amendment to the treaty, the procedures may be renewed.

An exception to extradition: section 2B(a)(6) of the Extradition Act – the offenses passing the statute of limitations under Israeli law: Once the offenses on the basis which extradition of a person who is in Israel have passed the statute of limitations under Israeli law, the extradition is barred. In the case before us, the statute of limitations begins to run out from the time the indictment was filed in 1985. None of the steps taken by the United States’ authorities and by in the Interpol after submitting the indictment constituted “investigation” steps which stop the watch on the statute of limitations, unless these were activities intended to keep the appellant’s matter “alive and well” with the expectation that at some point in time his extradition would become possible if and when the treaty is amended. In the meantime, two periods of limitations have elapsed, each of 10 years. It seems this conclusion would have been sufficient in order to end this appeal with the outcome that the appellant’s offenses have passed the statute of limitations under Israeli law and thus the statute of limitations exception according to which the Act prohibits extradition has been met, and since the requirement for “double criminality” as a condition for extradition has not been met either.

The principle of “inability to act” as a cause for suspending the time laps of limitations in criminal law: there is a position, expressed in various contexts, that the limitations arrangement in section 9(c) of the Criminal Procedure Act, which addresses events that suspend limitations, may be supplemented by the general principle (which is absent from the black letter law) that where it is impossible for the competent authority to advance criminal proceedings for an obstacle or cause that is out of its control, this can suspend the period of limitations and reset it once the obstacle has been lifted. The principle of “inability to act” – whether by statute or by a factual situation that is a result of a “higher power” – was not widely applied in Israeli law, to the extent that it is an exception to explicit statutory arrangements in these matters. Without determining the issue of whether this principle must be applied, the circumstances of the appellant – where only the language of the extradition treaty between Israel and the United States created a legal bar from extraditing the appellant until the year 2007 – do not constitute “inability to act”, whether by law or by facts, or whether by a “higher power” that could suspend the limitations period for prosecuting or extraditing the defendant. This is certainly the case when the general principle of “inability to act” is applied by way of narrow interpretation, which is required as a result of the harm caused to the rights of suspects and defendants and their interest not to be subject to a swinging sward of the criminal process for longer periods than the limitations period as was established in section 9 of the Criminal Procedure Act, including the events it defines as limitations-suspending.

The fact that the appellant fled the borders of the requesting state, where he committed the offenses, is not a cause for “inability to act” that may suspend the criminal limitations period under Israeli law. This is different than circumstances where the wanted person avoided an extradition procedure that is conducted in Israel, which may under certain circumstances serve as such cause under section 94A of the Criminal Procedure Act, which will be discussed below.

Suspending the limitations period under section 94A of the Criminal Procedure Act – suspending proceedings due to the defendant’s evasion of justice: the statutory provision regarding suspending the limitations period due to “suspension of proceedings” as addressed by section 94A of the Criminal Procedure Act concern only the evasion of a defendant from justice in terms of proceedings that are held in Israel – whether criminal proceedings or extradition procedures decided in an Israeli court. This provision cannot be implemented in regards to a defendant’s evasion from justice in the state, which seeks his extradition, as long as the defendant is available in the extradition procedure and has not evaded it, as is the case here. Section 94A as it relates to extradition, is applicable to circumstances where a defendant flees Israeli law when an extradition procedure is held against him in Israel. In such circumstances the proceeding may be suspended and the suspension period will not count against the limitations period, but this only when at the time the extradition proceeding began the offenses subject to the extradition have not yet passed the statute of limitations.

Exception to extradition: section 2B(a)(8) of the Extradition Act – public interest: even where there no exception to limitations that could bar the appellant’s extradition, it would have been possible to bar his extradition to the United States for reasons related to the public interest in Israel. Given that 23 years have passed between the time the offenses attributed to the appellant were committed and the time the extradition proceedings began in 2007, and when he was continuously within the reach of Israeli law enforcement authorities and is location in Israel was not concealed, and in light of the fact that the governments of Israel and the United States had the possibility of amending the treaty and bring to his extradition for many years before this was actually done. Extraditing the appellant after so many years of waiting is not only a substantive infringement of his right to due process, but it is also an extreme deviation from fundamental values and principles at the core of the Israeli legal system, including the criminal process. On the overall balance, reasons of the “public interest” and “criminal justice estoppel” justify preventing the appellant’s extradition to the United States.

Justice E. Rubinstein adds that in a practical sense in light of the impossibility to extradite the appellant’s position was highly similar to that of Israeli defendants that the amendment to the Extradition Act from 1978 prohibited their extradition. The solution sought, in order to prevent Israel from becoming a refuge for criminals, was – with all difficulties involved – to prosecute in Israel as a residual solution. Justice Rubinstein agrees with the issue of the application of the limitations exception, but dissents on the matter of the application of the exceptions regarding the public interest and “criminal justice estoppel”.

Justice M. Naor: In the case at hand, the time the limitations period began was at the time the indictment was submitted against the appellant in 1985, and since that time there were no events that could suspend the limitations period. This means that more than 10 years have elapsed since the indictment was filed and until the time that section 94A of the Criminal Procedure Act came into effect. This provision was enacted after the “first” limitations period has elapsed and thus it bears no impact on our matter. The way to “overcome” the “first” limitations period (if this is at all possible) is therefore through applying the “inability to act” principle. Though this is not a principle that is included explicitly on the law books, Justice Naor leans toward to position that this principle does belong in the judicial toolbox generally, and also in the case at hand. Only in this case there was not an absolute inability to act and thus the appeal must be granted. Beyond the necessary scope, Justice Naor, too, believes that a decision to extradite the appellant does not compromise the public interest and that there is no room to recognize, under the circumstances, a “criminal justice estoppel.” It would have been just and correct to prosecute the appellant in order to examine the matter of his guilt or innocence.

Keywords

Criminal Law -- Statute of Limitations, Criminal Law -- Criminal Procedure, International Law -- Extradition

Download

Share

COinS