Case Number

CrimFH 1789/98

Date Decided

11-27-2000

Decision Type

Appellate

Document Type

Full Opinion

Abstract

Facts: Further hearing in the judgment of the Supreme Court (President A. Barak and Justices A. Goldberg and E. Mazza) dated March 2, 1998 in CA 6696/96 Benyamin Kahane v. State of Israel, in which Benyamin Kahane was acquitted of offenses based on sections 133 and 134(c) of the Penal Code 5737-1977. The acquittal overturned a conviction in the District Court which in turn had overturned an acquittal in the Magistrate’s Court. Two main issues were under consideration in the further hearing. The first dealt with the characteristics of the protected value or values in the offense of sedition in general and in section 136(d) in particular. The second was the question of the presence of a probability test within sections 133 and 134(c) of the Penal Code. These questions were dealt with particular emphasis on their implications for freedom of expression.

Held: In the majority opinion, written by Justice Or, the acquittal was overturned and the defendant was convicted of the offenses with which he had been charged. It was held that the protected values in the offense of sedition is not limited to harm to the structure of the regime but also includes protection of the value of “social cohesiveness” as defined by the court. It was further held that sections 133 and 134(c) contain a probability test. As for the degree of probability required, the court stated that while it was inclined to prefer the near certainty test, since the court held that this more stringent test had, in any event, been met it did not see it necessary to determine conclusively what the appropriate degree of probability was that was required.

President Barak in a separate opinion was of the view that the value protected in the offense of sedition is limited to the prevention of harm to the stability of the regime. President Barak was also of the view that given the broad view of sedition taken by the majority he agreed with the tendency of Justice Or that the proper proportional test would be that of near certainty, but that this test had not been met in the circumstances of the case. In the view of President Barak, the further hearing should have been denied.

Vice-President S. Levin in a separate opinion stated his general agreement with Justice T. Or and referenced his opinion in CrimFH 8613/96.

Justice Y. Kedmi in a separate opinion agreed with the outcome of Justice Or’s opinion but was of the view that sections 133 and 134(c) did not contain a probability test.

Justice D. Dorner in a separate opinion agreed with the outcome of Justice Or’s opinion but was of the view that the offense of sedition does not contain a probability test.

Justice J. Türkel in a separate opinion was of the view that the further hearing should have been denied.

Justice E. Mazza in a separate opinion was of the view that offenses of sedition do not include a probability element.

Keywords

Administrative Law -- Discretion, Administrative Law -- Judicial review, Criminal Law

Download

Share

COinS