Case Number
CrimA 4596/05
Date Decided
11-30-2005
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.]
The United States filed a petition for the extradition of the Appellant, Ze’ev Rosenstein, for the purposes of prosecuting him for conspiracy to smuggle a dangerous drug to the United States and its distribution there. Following the Petition, the Attorney General submitted a motion to the District Court for a declaratory relief that he is extraditable. The District Court granted the motion and declared the Appellant extraditable. This led to the appeal here. The Appellant claims, among others, criminal justice estoppel, which requires the suspension of the extradition process and that his extradition to the United States is unconstitutional since he is a citizen and resident of Israel and because the offense of which he was accused was committed in its entirety in Israel.
The Supreme Court held:
A. 1. Whether the doctrine of criminal justice estoppel stands alone in the extradition process or whether it is encompassed in the “internal” defenses of extradition law, an extradition petition that reveals a real concern for compromising principles of justice and legal fairness or for the right to due process may be refused for such reasons. Where extradition procedures have already commenced, they may be suspended.
2. In this case the claim of criminal justice estoppel must be rejected. We cannot accept the Appellant’s arguments as to discrimination compared to other defendants and as to a flaw in the Prosecutions divergence from previous policy.
B. In light of the independent and active role the Extradition Act grants the judicial authority, courts reviewing extraditions must consider the range of factors relevant to the petition. The factors include: the nature of the act at the basis of the extradition petition, including the proper enforcement policy regarding it; the strength of the connection between the act and the legal systems of the requesting country and the requested country; the requirements, in the relevant case, of extradition laws, including those in agreement-based international law; the ability to ensure the subject of the extradition request a due process and fair trial in the requesting country; the public interest in extradition and the proper balance between extradition and one’s constitutional right not to be extradited; considerations as to the status of Israel, its sovereignty and international relations, including considerations of reciprocity.
C. The Appellant’s matter meets the procedural and substantive requirements of the Extradition Act. The relevant act meets the “dual criminality” rule and has yet to pass the period of limitations, the Appellant is not exposed to double jeopardy and the offence of which he is accused carries a penalty of more than a year’s incarceration; the context of the extradition is not political or security based, and the extradition is not discriminatory against the Appellant; the evidence presented is sufficient for extradition; the United States has committed to return the Appellant to Israel for the purposes of serving his sentence should he be committed, and the extradition is contingent upon this commitment.
D. 1. The acts of which the Appellant is accused create both American and Israeli jurisdiction. The offenses for which the United States wishes to prosecute him allow, by their nature and under the principles of the law there, to expand the application of this country’s laws to acts committed outside of its borders. Israeli law views the issue of extra-territorial application in this case the same way American law does. This approach is clearly expressed in the extradition treaty between the two countries as well. Additionally, both countries have a territorial link to the relevant acts: the conspiracy was completed in Israel (a narrow territorial link) and its impact materialized in the United States (broad territorial link). At the same time the acts are connected to the Israeli system by virtue of the Appellant’s Israeli citizenship and residence, and to the United States by virtue of the fact that the harmed party is the American public and the essential interests of this country. Both countries, put together, have an interest in bringing to justice those who are suspected of committing drug offenses.
2. The primary purpose of extradition is in the principle of allowing the “natural judge” of the defendant to consider the case. To the extent that this concerns criminal law, the “natural” legal system is that which has the most links to the relevant allegations. This approach is termed at times the approach of the “majority of links” or the approach of offense’s “center of gravity”, and it best reflects the connection between the offense and the legal system which ought to apply to it. Therefore, to the extent that one’s act, regardless of the physical location of where it is committed, is particularly linked to the legal system of the requesting country, then the purposes of extradition law leads to the conclusion that such person much be extradited to such country. Identifying the center of gravity of the offense is merely a rule of preference which reveals which of the legal systems’ link has priority in regard to the offense. This is not a determinative rule, and its outcome joins the other factors taken into account in the decision.
3. Under the circumstances of the case at hand, we must determine that the conspiratorial act and its outcomes, as one, are linked primarily to the United States and that the case’s center of gravity is in this country. The geographical location where, as argued, the Appellant acted has no real importance. Therefore the American system takes priority under the “preference rule”. This is the “natural system” for adjudicating the Appellant’s guilt. The harms it suffered from the criminal activity must be attributed significant weight. Its clear interest in realizing its sovereignty must be given preference, which is realized through the prosecution – within its borders – of those responsible for such harms. The pragmatic expression of this is in granting the extradition petition.
E. The Appellant’s argument that the extradition would violate his due process rights should be rejected. The issue of fairness must be considered in the context of the foreign criminal law in its entirety and in light of the overall system of constitutional balances it holds. The American legal process follows principles of fairness in all of the substantive and procedural rights that flow from it. This is sufficient to ensure that the Appellant would not be exposed to a process that is not fair.
F. The Appellant’s extradition is consistent with the public interest. It realizes the purposes at the foundation of extradition. It is not done out of coercion or pressure, but based on the positions of the Israeli prosecution and courts. It is but a clear reflection of Israel’s sovereignty, and insofar that it is build on a foundation of reciprocity in the relationship with the United States, it is expected to strengthen the principle of sovereignty when Israel submits a similar request to the American legal authorities.
G. All four conditions of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty are met in the matter of the Appellant’s extradition.
H. Therefore the District Court’s declaration of the Appellant as extraditable to the United States is lawful. This is a result of recognizing the natural prerogative given under the circumstances to the United States to protect itself from those threatening it from the outside. It is required by the desirable cooperation between the two countries. It is required by the interest of the Israel public, and such is the proper balance between it and the Appellant’s rights. The Appeal must be rejected.
Keywords
International Law -- Extradition, International Law -- International Jurisdiction
