Case Number

HCJ 11225/03

Date Decided

2-1-2006

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: In 2000 and 2001, while the petitioner was a member of the Fifteenth Knesset, he made two speeches. These speeches expressed support and approval for the Hezbollah organization, which in Israel has been declared a terrorist organization, and the petitioner was indicted for offences of supporting a terrorist organization.

In 2002, prior to the elections for the Sixteenth Knesset, applications were made to the Central Elections Committee to disqualify the candidacy of the petitioner in those elections, because of what he said in the two speeches. The Central Elections Committee disqualified the petitioner from standing for election, but this decision was set aside by the Supreme Court in Central Elections Committee for the Sixteenth Knesset v. Tibi, on the grounds that it was not convinced that the petitioner had expressed support for ‘an armed struggle of a terrorist organization against the State of Israel,’ as distinct merely from expressing support for a terrorist organization.

Meanwhile, the petitioner raised a preliminary argument in the criminal trial against him that he had substantive immunity against prosecution for the two speeches, since he made them while he was a member of the Knesset. The Nazareth Magistrates Court, which was hearing the trial, held that it would decide the question of substantive immunity after hearing the evidence in the trial. The petitioner then applied to the Supreme Court to set aside the decision of the Nazareth Magistrates Court.

Held: (Majority opinion — President Barak and Justice Rivlin) Under the Immunity Law, expressions of support for ‘an armed struggle of a terrorist organization against the State of Israel’ are not protected by parliamentary immunity. This exclusion of immunity should be interpreted strictly. It does not include all expressions of support for a terrorist organization, only those that contain support for an armed struggle of a terrorist organization against the State of Israel. As the court held in Central Elections Committee for the Sixteenth Knesset v. Tibi, the petitioner’s speeches did not contain clear support for an armed struggle of a terrorist organization against the State of Israel, although they did contain support for a terrorist organization. Consequently the statutory exclusion of immunity does not apply. The petitioner’s speeches should be considered under the case law rules for excluding immunity, according to the ‘margin of natural risk’ test. Although the petitioner’s statements and the circumstances in which they were made were close to the line beyond which it would not be possible to say that they fall within the scope of the natural risk involved in carrying out the duties of a member of the Knesset, the ‘margin of natural risk’ test is satisfied in this case.

(Minority opinion —Justice Hayut) The petitioner’s two speeches are not protected by substantive immunity, since they expressed support for an armed struggle of a terrorist organization against the State of Israel. In Central Elections Committee for the Sixteenth Knesset v. Tibi the petitioner was not disqualified from standing for election to the Knesset, but the premise for considering the scope of substantive immunity is completely different from the criteria that the court adopts when considering whether to disqualify a candidate from standing for office. The question of substantive immunity naturally arises with regard to a specific case, whereas for the purpose of disqualification in elections it is necessary to show that we are speaking of dominant characteristics that are central to the activities or the statements of the prospective member of Knesset in general. Moreover, for the purpose of preventing participation in the elections, ‘convincing, clear and unambiguous evidence’ must be presented as to the purposes and acts of the candidate. By contrast, the premise for determining the scope of substantive immunity is that the facts of the indictment will be proved.

Keywords

Constitutional Law -- Freedom of Expression, Constitutional Law -- Immunity

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