Case Number

HCJ 4921/13

Date Decided

10-14-2013

Decision Type

Original

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.]

Indictments were filed against Mr. Shimon Gapso, the Mayor of Nazareth Illit and Mr. Itzhak Rochberger, the Mayor of Ramat HaSharon. Mr. Gapso is accused of taking a bribe. Mr. Rochberger is accused of falsifying corporate documents and of fraud and violation of trust in a corporation. The city council of Nazareth Illit has decided, in a majority vote, not to relieve Mr. Gapso from his office. The city council of Ramat HaSharon has not come to a decision whether or not to relieve Mr. Rochberger of his duties after deciding to take the issue off the agenda. Hence these petitions.

The High Court of Justice ruled in a majority by Deputy President Naor and Justices Arbel, Rubinstein, Hayut, Hendel, Zylbertal, with President Grunis dissenting, that in light of the indictments against the mayors, the city councils were required by section 22 of the Local Municipalities Act (Electing Mayors, Deputies, and their terms) ("Mayors Election Act") to assemble and discuss whether to remove them from their offices. The Nazareth Illit municipality’s decision not to remove Mr. Gapso from his office is inconsistent with the principle of preserving good character and the rule of law. Ramat HaSharon’s failure to assemble constitutes a decision to refuse to remove Mr. Rochberger from his office. This decision is inconsistent with the principle of preserving good character and the rule of law. The two men’s conduct, as described in the indictments (which constitute weighty administrative evidence), is conduct unbecoming, under section 22 of the Act. The decision is extremely unreasonable also because the election for local municipalities are impending, because both men have declared their intention to run for mayors again. Therefore, the Court granted orders to immediately remove Mr. Gapso and Mr. Rocherberger from their respective offices.

In the public sense, the majority justices expressed discomfort with the two men running for office in the upcoming election despite the indictments against them. However, in the legal sense, they recognized that it is impossible to prevent them from doing so. It should be clear that should either of these candidates win, the local municipality would be obligated to assemble soon after the election to discuss and decide whether to remove the Mayor from office, under section 22, and the decision taken would also be subject to judicial review.

President Grunis believes that in light of the fact that the local municipalities election is to be held in less than two months, the Court should wait for the voters’ decision. Indeed, whoever has been indicted for offenses such as those involving the Mayor of Nazareth Illit and the Mayor of Ramat HaSharon is not fit, in the social sense, to serve as mayor of a local municipality. From the public perspective, it would have been appropriate for the two to resign their offices as soon as the indictments were filed. It was likewise appropriate, from the public perspective, that the two would not run for re-election. However, the public perspective and legal perspective must be distinguished. Since the election is coming up and will be held soon, there is no need for the Court to substitute itself for voters in the respective local municipalities.

Keywords

Criminal Law -- Impeachment of public officials, Elections

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