Case Number

CrimA 9334/08

Date Decided

11-23-2011

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 appellant was convicted in the District Court of weapons offenses (trading in weapons) and conspiracy to commit a felony. The offenses attributed to the Appellant were committed in their entirety in the Gaza Strip, and none, nor any part of any of them, were committed within the territory of the State of Israel, nor were their outcomes intended to occur in the State of Israel. The central question in the appeal was whether these “foreign offenses” (under sec. 7(b) of the Penal Law) constitute crimes against the security of the State of Israel for the purpose of extraterritorial jurisdiction.

In denying the appeal, the Supreme Court (per Justice M. Naor, Justice E. Arbel and Justice Y. Danziger concurring) held:

1. As a rule, the area of application of Israeli criminal law is within the territory of the State. When we seek to apply this law to foreign offenses, we must be able to point to a “connecting link”, a “normative bridge”, between the law of the state and these offenses that were committed beyond the borders of the state, which will replace the territorial element

2. Several jurisdiction-extending nexuses are accepted in most legal systems, including the Israeli legal system: an active personal nexus – between the perpetrator of the offense and the legal system; a passive personal nexus – between the victim of the offense and the legal system; a universal nexus – which relates to particularly serious offenses whose prevention is a matter of universal interest; a vicarious nexus – which relates to offenses that Israel will address by virtue of a treaty between itself and another state; and the protective nexus – which concerns acts that have harmed or were intended to harm essential state interests, such as security, the regime or the economy.

3. There is nothing in the first part of s. 13(a) of the Penal Law that defines the scope of the protective nexus. The question is whether the word “against” must be interpreted as referring only to offenses which by their nature are directed against national security, such as offenses specified in the relevant chapters of the Penal Law and the Prevention of Terrorism Ordinance. According to the purpose of s. 13(a), the interpretation according to which the protective nexus remains applicable to all acts which by virtue of their circumstances are directed against national security is to be preferred.

4. Interpretation of the law in the criminal sphere is also purposive interpretation, in the framework of which one must examine the language of the law, as well as the goals and interests that the law is intended to realize. An interpretation of the language of the law that is favorable to the accused may nevertheless be rejected if it fails to optimally realize the purpose of the law.

5. The statutory provisions regarding extraterritorial application by virtue of the protective nexus, as formulated prior to Amendment 39, applied the domestic law to every act that harmed or was intended to harm “the State” or important interests such as the economy of Israel and its security. The present formulation restricts the application of the law by virtue of the protective nexus to offenses that are directed against certain interests, and it no longer allows for the application of the law to “any” harm to the “state”. Despite the textual change, Amendment 39 did not reduce the scope of the protective nexus. Israel’s criminal laws continue to apply to a person who perpetrates an act which, according to its circumstances, harmed or was intended to harm the security of the state, as was the situation that pertained prior to the Amendment.

6. The purpose of the protective nexus, particularly in the context of national security, lends support to the conclusion that the protective nexus is not confined to offenses that are intrinsically harmful to national security. The purpose of this nexus is a response to the need of the state to protect itself from deeds that are perpetrated outside its borders and that are directed against vital interests.

7. The function of the protective principle is to protect important interests from various threats. Clearly, there are some deeds which, by virtue of their circumstances, present a real threat to the security of the State of Israel, even if they do not constitute “pure” security offenses like s. 111 of the Penal Law that prohibits the delivery of information to the enemy. Thus, for example, a person’s acts that constitute a link in the terrorism chain, whether they be the funding of the activities of a terrorist organization or the smuggling of weapons to that organization, constitute a concrete threat to security.

8. The protective principle, when it is not restricted to a closed, specific list of offenses, allows for effective, focused action against those links in the chain of terror whose operational base is often to be found outside the territory of the State of Israel. The purpose of the Law, therefore, is best realized when the scope of the protective application is not confined to a list of specific offences that are intrinsically directed against national security.

9. The penal provisions under which the Appellant was charged apply by virtue of the protective nexus. Therefore, the question of whether his acts are punishable in the territory in which they were perpetrated is immaterial. The protective nexus prevails, and the foreign law does not restrict its scope. This means that for the purpose of extraterritorial application by virtue of the protective nexus, there is no requirement of double criminality.

10. Section 8 of the Criminal Procedure (Interrogation of Suspects) Law, 5762- 2002 states that if the suspect’s interrogation was recorded in writing, this record shall be in the language in which the interrogation was conducted, and if it is not possible to record the interrogation in the language in which it was conducted, a visual or audio record should be made. In our case, this requirement was not fulfilled. Such a defect can significantly reduce the weight of the confession, and can even affect its very admissibility. However, in certain circumstances, the weight of the statement may be judged on its substance in order to decide whether the record departs from the truth.

Justice Y. Danziger (concurring):

1. As a rule, the case-law directs that notwithstanding the provision of s. 8(1) of the Interrogation of Suspects Law, where the court is convinced that even though the confession was not transcribed in the language in which the suspect was interrogated, it accurately reflects what the suspect said in his interrogation, the confession will be admissible and full weight may be attributed to it. This approach renders s. 8(1) meaningless. It is the direct continuation of the accepted approach in the case law of this Court prior to the enactment of s. 8 of the Interrogation of Suspects Law.

2. It therefore appears that there has been no change in the approach of the case law to the matter of the language in which the suspect’s confession was recorded, despite the clear, explicit directive in the Interrogation of Suspects Law. I am of the opinion that the Interrogation of Suspects Law sought to introduce a substantive change in the normative situation that pertained prior to its enactment. The legislature is deemed not to waste its words, yet the case law has not given full expression to the change that the legislature sought to bring about in relation to the manner of recording the confession of a suspect.

3. A breach of the provisions of ss. 8(1)-8(2) of the Interrogation of Suspects Law should have real repercussions not only with respect to the weight of a confession, but primarily at the level of admissibility, in view of the ongoing strengthening of the right to a due process at all stages, as expressed in the case-law exclusionary doctrine, and in view of the recognition of due process as a constitutional right.

Keywords

Constitutional Law -- State of Emergency and National Security, Criminal Law

Share

COinS