Recent Developments in Israeli Law

The Israeli Supreme Court Blog

In this issue of the Israeli Supreme Court Blog we present abstracts of four recent decisions of the Israeli Supreme Court.

On Dec. 12, 2018, the Court delivered its opinion in HCJ 7344/17 A. et al. v. Minister of the Interior and the Population and Immigration Authority. The case concerned a petition by a same-sex couple challenging the refusal of the Ministry of the Interior to amend the birth certificate of their adopted child so that the names of the adoptive parents would be listed as the parents of the child. The petition was granted.

On Dec. 9, 2018, the Court delivered its opinion in HCJ 8542/18 Maya Ackerman et al. v. Government of Israel. In this petition, 52 residents of the area adjacent to the Gaza Strip sought an order to prevent the State from facilitating the transfer of humanitarian aid from Qatar to the Gaza Strip. The Court denied the petition on the grounds of non-justiciability.

On Dec. 11, 2018, the Court delivered its opinion in LCA 7064/17 Arad v. Manx Online Trading Ltd. This request for leave to appeal originated in an action brought in the Tel Aviv Small Claims Court for sending “spam”. The action was filed against the Defendant with the aid of Spam Off Technologies Ltd., a company that offers services to locate the sender of spam and file claims. Because sixty separate claims were filed against the Defendant, all the cases were joined. Thirty of the claims were filed with the assistance of Spam Off.

In all sixty cases, the trial court found that the advertising had been sent in violation of the law. The court ordered compensation for each of the thirty individual plaintiffs, but denied compensation to all the plaintiffs represented by Spam Off. The Appellant was granted leave to appeal the judgment to the Tel Aviv District Court, which affirmed the trial court’s ruling. The Supreme Court granted leave to appeal. The judgment of the District Court was reversed.

On Nov. 26, 2018, the Supreme Court delivered its opinion in HCJ 9018/17 Firas Tbeish et al. v. Attorney General et al. The Petitioner claimed that he was tortured in the course of interrogation by the Israel Security Agency (ISA), and petitioned the Court to order the Attorney General to rescind his decision not to open a criminal investigation of the interrogators, and to annul the Attorney General’s guidelines entitled: “ISA Interrogations and the Necessity Defense – Framework for the Attorney General’s Discretion” that provide the basis for the Internal Guidelines of the ISA. In addition to the abstract published below, a full translation of the judgment has been published on Versa here.

Avinoam Sharon

Editor-in-Chief

HCJ 7344/17 A. et al. v. Minister of the Interior and the Population and Immigration Authority

This petition challenged the refusal of the Ministry of the Interior to register same-sex partners as the parents of their adopted child. Petition granted.

Facts:

The Tel Aviv Family Court approved the adoption of a child by two male partners, ordered that they be registered as the child’s parents, and that the child would carry both of their family names, in accordance with sec. 5(a) of the Names Law, 5716-1956. The child was adopted in a “closed adoption” which “severs the connection between the minor and its biological parents” (LFA 7795/18 A. v. Attorney General (May 10, 2018)), and is confidential in accordance with sec. 34 of the Adoption of Children Law, 5741-1981 (hereinafter: the Adoption Law).

The child was issued a new ID number, and the adoptive parents were registered as the child’s parents in the Population Registry. However, the Respondents refused to issue an amended birth certificate listing the couple as the child’s parents.

In response to the petition, the Attorney General informed the Court that a birth certificate is intended to reflect a child’s biological parentage on the day of birth, and later developments should not, in principle, constitute reason for amending the certificate. However, in order to protect the confidentiality of closed adoptions and surrogacy, and to ensure the severing of the child’s connection to its biological parents, the issuance of a new ID number and replacing the original registration file are insufficient. Therefore, the provisions of sec. 20 of the Population Registry Law, concerning the registration of the adoptive parents in every official document, should apply. This was so even though there was no change in the biological parentage, and in terms of confidentiality, amending the certificate in the case of same-sex partners would not hide the fact of adoption. Nevertheless, the Attorney General was of the opinion that amending the certificate would serve the primary purpose of confidentiality, which is severing the connection to the biological family.

The Attorney General was also of the opinion that no distinction should be drawn between heterosexual and same-sex parents. This was required both for the welfare of the child and by the right to equality. Therefore, the Attorney General informed the Court that he was in favor of “permitting the registration of the two adoptive fathers in the birth certificate”, as it was his opinion that “under these circumstances, refraining from registering the two adoptive parents in the birth certificate infringes equality and does not serve a proper purpose”.

Although the Attorney General spoke for the Respondents, he added that the Minister of the Interior did not accept his opinion, and argued that the requested relief “does not advance any practical purpose related to the welfare of the child”, and was intended merely to advance recognition of single-sex family units, which is a hotly debated issue that should be left to resolution by the legislature.

The petition was granted.

Justice N. Hendel, writing for the Court, held:

1.         Section 20 of the Population Registry Law expressly establishes that adoptive parents be registered as the parents in “every document according to this law”. The Minister of the Interior argues that the section applies only to “relevant” documents, as opposed to a birth certificate, which he argues is intended to “reflect only the biological parentage at the time of birth and not subsequent changes”. That view is clearly self-contradictory. The Adoption Law’s confidentiality requirement requires that the particulars of the biological parents be removed from the birth certificate in the case of a closed adoption. Even under the assumption that the original purpose of a birth certificate is to record the biological parentage at the time of birth, a closed adoption substantively changes its purpose, making it a legal document that expresses a normative change in the parentage, even if only by the removal of the names of the biological parents. We should follow the broad language of sec. 20, and avoid creating a “parental vacuum” in which the names of the biological parents are removed without any replacement. That is the case for the Population Registry itself, as well as for “every document” under that law, which can no longer reflect the original biological parentage.

2.         The Minister argues that since two adoption orders are issued in a same-sex adoption, there is no obligation to register each, as the Population Registry Law refers to registering “the adoption order” in the singular, and therefore registering one parent in the amended birth certificate suffices. The argument is without merit. Although procedurally, an adoption by a same-sex couple differs in that two orders are granted rather than a single order, the substance is identical: adoption by a family unit that is intended to serve the child’s welfare. That is why the two, formally separate, adoption applications are decided in a unified proceeding, and the approval of the adoption is issued in a single judgment, as was the case in the present matter. In practice, there is one order.

3.         Moreover, in view of the purpose of sec. 20, we should not draw far-reaching conclusions form the term “adoption order”, inasmuch as the need to sever the connection to the biological parents and to establish the adoptive family unit is not influenced by the formal procedure of the adoption process. A difference in procedure does not justify different treatment of adoptive couples on the basis of gender identity or sexual orientation.

4.         The principle of the welfare of the child supports the view of the Attorney General that the full family unit should be listed in the birth certificate, and does not allow for sufficing with listing one parent in the certificate while excluding another parent and infringing his right to paternity.

HCJ 8542/18 Maya Ackerman et al. v. Government of Israel

            In this petition, 52 residents of the area adjacent to the Gaza Strip sought an order nisi and an interim order to prevent the State from facilitating the transfer of aid from Qatar to the Gaza Strip. The Petitioners argued that the State was legally bound to prevent such a transfer as long as the Hamas controls Gaza, and as long as terrorist activity originating in Gaza continues against the residents of the State of Israel. The Petitioners argued that in permitting the transfer, the State was in violation of the Counter Terrorism Law, 5776-2016, and the Combating Criminal Organizations Law, 5763-2003.

            The State responded that it was acting lawfully, that there was no legal bar to transferring the monies, and that the transfer had been approved by the State Security Cabinet “for humanitarian reasons, and in the framework of the effort to prevent a deterioration of security in the Gaza Strip”. The State added that the matter represented a clear instance of the exercise of political-security discretion, and that it is not the practice of the Court to intervene in such matters.

The petition was denied.

Justice Alex Stein, writing for the Court, held:

1.         From a legal perspective, the petition should be dismissed in limine, as is concerns  matters that are clearly operational and political. These are matters that stand at the heart of the Government’s political discretion, in which the Court does not intervene.

2.         The principle in such matters was summarized by Deputy President M. Elon in HCJ 4354/92 Temple Mount Faithful v. Prime Minister, IsrSC 47 (1) 37, 44 (1983) as follows:

It has been held in a long line of this Court’s case law that the manner of conducting foreign policy by the duly authorized bodies is non-justiciable. It cannot be examined in accordance with legal criteria, and this Court will not intervene in such matters.

3.         In matters such as this, the Government answers to the Knesset and the electorate, and not to the Court. This is in accordance with secs. 3,4 and 28 of Basic Law: The Government, and so it is in American Constitutional law. As the United States Supreme Court has held:

[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions […] are delicate, complex, and involve large elements of prophesy. […] They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility (Chicago & S. Airlines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)).

4.         The argument that the Government is violating a number of criminal prohibitions is without merit, as “those laws were not intended, by their very nature,  to apply to actions by the Government, or its agencies acting in the scope of their lawful authority to realize policy intended to advance the public’s interest in the broad sense, and to meet Israel’s humanitarian and international-law obligations towards the residents of the area” (HCJ 1169/09 Legal Forum for the Land of Israel v. Prime Minister (June 15, 2009) per A Procaccia, J.).

5.         Moreover, the State of Israel and its Government do not bear criminal responsibility, in accordance with sec. 42 of the Interpretation Ordinance, 5714-1954 (see: S.Z. Feller, Elements of Criminal Law, vol. I, 718 (1984) (Hebrew)).

11.12.18

LCA 7064/17 Arad v. Manx Online Trading Ltd.

            This request for leave to appeal originated in an action brought in the Tel Aviv Small Claims Court under sec. 30A of the Communication (Bezeq and Transmission) Law, 5742-1982, [unofficial English translation: https://www.wipo.int/edocs/lexdocs/laws/en/il/il042en.pdf] for transmitting an advertisement (“spam”) without the prior written consent of the addressee, and without including the required “notice of refusal”. The action was filed against the Defendant with the aid of Spam Off Technologies Ltd., a company that offers services to locate the sender of spam and to file claims. Spam Off provides its services to plaintiffs for a fee. If the plaintiff prevails, Spam Off is entitled to 20% of the award or NIS 100, whichever is greater. Because sixty claims were filed against the Defendant, the President of the Tel Aviv Magistrates Court decided to join all the cases in a unified proceeding before the Tel Aviv Small Claims Court. Thirty of the claims were filed with the assistance of Spam Off.

            In all sixty cases, the trial court found that the advertising had been sent in violation of the Law. In addition to criminal penalties, sec. 30A(i) establishes a violation of the Law as a civil wrong under the Civil Wrongs Ordinance [New Versions], and permits the court to award compensation that does not depend on damage (“exemplary compensation”) in an amount not to exceed NIS 1000 for each advertisement received by the addressee in violation of the Law. The court ordered compensation for each of the thirty individual plaintiffs, but denied compensation to all the plaintiffs represented by Spam Off. The court held that while Spam Off’s activities are not unlawful, they lead to a significant increase in the number of spam suits, thereby harming other plaintiffs by causing delays in scheduling hearings, as well as difficulties in conducting proceedings, and therefore should not be encouraged. Therefore, the court was of the opinion that spam suits brought with the assistance of Spam Off were not efficient, do not serve the purpose of the Law and lead to over deterrence. Inasmuch as sec. 30A(j) leaves exemplary compensation to the discretion of the court, which may also take into account considerations not stated in the Law, the court concluded that the claims filed with the aid of Spam Off – including that of the Appellant – be denied.

            The Appellant was granted leave to appeal the judgment to the Tel Aviv District Court, because the matter raised a question of principle that went beyond the private interests of the parties. However, the District Court affirmed the trial court’s ruling, and the appeal was denied.

            The Supreme Court granted the Appellant leave to appeal, as the question raised by the appeal concerned the authority and the scope of discretion of a court to deny a claim for exemplary compensation under sec. 30A of the Law due to the assistance of a company that specializes in such matters and profits from the award. Therefore, the appeal raised a legal question of principle that goes beyond the interests of the parties.

            The Supreme Court granted the appeal and reversed the judgment of the District Court.

Justice M. Mazuz, writing for the Court, held:

1.         The Small Claims Court and the District Court were in error in finding that claims filed with the assistance of Spam Off do not serve the purposes of the Law and the purpose of small-claims proceedings and should not be encouraged.

2.         The rationale for establishing small claims courts is to help the “ordinary citizen” overcome the difficulties presented by regular legal proceedings, such as litigation costs, lack of knowledge, and time. They provide a simple, short, and cheap means for citizens lacking a legal education to bring even financially significant matters before the courts without legal representation. But simplification of procedures and shortened litigation time are not independent purposes of the institution, but rather means for achieving the primary purpose of making the courts accessible to ordinary citizens. This is particularly relevant when the rights and sums involved may not economically justify the cost of regular litigation.

3.         While legal representation is not permitted in small claims court without the permission of the court for special reasons that the court must explain in writing, the legislature permitted  the court to allow representation by organizations recognized for that purpose by the Minister of Justice, such as consumer organizations, that may help in making the courts accessible to ordinary citizens. Small claims share with class actions the purpose of providing a vehicle for cases in which the value of the dispute does not justify the costs of regular litigation.

4.         In summary, the primary purpose of small claims proceedings is to help the ordinary citizen overcome the obstacles of knowledge, expertise, and legal costs required in regular litigation, and to that end, the legislature also permitted recognition of organizations that provide aid, and even representation, when needed.

5.         Section 30A was added to the Communications Law by Amendment No. 40, also known as the “Spam Law”. The Law adopted a particularly severe approach, both adopting the European model that requires prior consent of the addressee (“opt in”), and requiring that consent be express and in writing. The Law also establishes criminal and civil sanctions, including compensation without proof of damage (“exemplary compensation”). This Court has also held that a plaintiff seeking such compensation is not required to mitigate damages by requesting removal from the sender’s distribution list, inasmuch as the Law’s purpose is to create deterrence of transgressors and to encourage the filing of effective suits, and not to compensate the plaintiff for actual harm. The legislature sought to contend with the spam phenomenon by adopting a model of private enforcement by encouraging plaintiffs to sue at low cost and without need to prove damage, in the hope of deterring spammers.

6.         The present case raises the question whether a court can entirely deny compensation to a plaintiff who proved his case, and whether the court’s reasons for doing so are well-founded. Section 30A(1) states, “the court may award - in respect of that violation – compensation that does not depend on the damage”. This would seem to imply that the court may also refrain from awarding any compensation. However, in view of the absence of a requirement to prove damage, it is hard to imagine circumstances that would justify an absolute denial of compensation. Such a result would seem to be at odds with the Law’s purpose of effective deterrence. It is also inconsistent with the case-law rule that the courts should view the upper-boundary of compensation (NIS 1000) as the starting point for establishing compensation, from which it may deviate where appropriate. In other words, once the plaintiff has prevailed, he is entitled to the compensation established by the Law, subject to the court’s discretion to reduce that sum for considerations enumerated in the Law, or similar considerations that realize the purpose of the Law. While it is possible to conceive of rare, exceptional circumstances that might justify refraining from awarding compensation to a plaintiff who proved his claim, such circumstances did not exist in the present case, and the lower courts erred in holding that granting compensation to the Appellant was contrary to the purpose of the Law. The activities of bodies that assist plaintiffs in realizing their rights is consistent with the purposes of the Law, and help realize them. There is no justification for denying compensation in actions filed with their assistance.

7.         It should be noted that despite the relative ease of suing in small claims court, suing spammers presents not insignificant obstacles for the ordinary citizen, which may deter filing suit. The compensation is relatively low, and while the plaintiff need not prove damage, he must prove the elements of the tort, and most problematic, he must identify the sender of the spam. The need for assistance – whether voluntary of for a fee – is clear, it serves to remove the obstacles to litigation, and encourages plaintiffs. The activities of entities like Spam Off aid in achieving the Law’s deterrent purpose, and the lower court erred in finding that such activity leads to “over deterrence”. The existence of many complaints for spam does not lead to over deterrence, but rather to a hope of effective deterrence.

8.         The consideration that the filing of a large number of spam suits would overburden the courts is also in error. While the Law does not provide a closed list of considerations for reducing compensation, that does not mean that the court can deny suits that have been proven because they place a burden on the court. The other considerations that the court may consider may only be such that serve the purpose of the Law. The court’s discretion in assessing exemplary compensation is thus limited to considerations that are consistent with the Law’s purposes and that serve to achieve them, and only those considerations.

HCJ 9018/17 Firas Tbeish et al. v. Attorney General et al.

The Petitioner claimed that he was tortured in the course of interrogation by the Israel Security Agency (ISA) (formerly the General Security Service (GSS)), and petitioned the Court to order the Attorney General to rescind his decision not to open a criminal investigation of the interrogators, and to annul the Attorney General’s guidelines entitled: “ISA Interrogations and the Necessity Defense – Framework for the Attorney General’s Discretion” (hereinafter: the AG’s Guidelines) that provide the basis for the Internal Guidelines of the ISA (hereinafter: the Guidelines). The Petitioners argued that the Guidelines unlawfully permit interrogators to consult with more senior officials in regard to employing “special means” in the course of interrogations.

Facts:

The Petitioner was interrogated by the Israel Security Service on the suspicion of hostile terrorist activity in the military wing of the Hamas. According to intelligence, the Petitioner knew the location of a substantial arms cache that had been used in the perpetration of several terrorist attacks. Additionally, there was a suspicion that the terrorist network of which the Petitioner was a member, intended to carry out another terrorist attack with those weapons. In light of the Petitioner’s denial of the suspicions, and in view of the ISA interrogators’ opinion that he had information about a planned attack that would endanger human lives, the ISA employed what the Respondents termed “special means of interrogation” against the Petitioner. In the course of his interrogation, the Petitioner provided information about weapons that he had received and had transferred to other Hamas activists, as well as information that aided in the interrogation of other members of the terrorist network, one of whom admitted to planning a kidnapping attack and to “setting in motion additional terrorist activity”.

Upon conclusion of the investigation, an information was filed against the Petitioner in the Military Court in Judea. The Petitioner pled guilty under a plea agreement, and was convicted of membership and activity in an unlawful association and of commerce in military ordnance.

While the case was pending in the trial court, the Petitioner filed a complaint asking that the Attorney General immediately open a criminal investigation against the Petitioner’s interrogators, and against the members of the Prison Service’s medical staff. The Petitioner’s complaint was sent to the Department for Complaints Against the Israel Security Agency. The findings of the  Department were sent to the Director responsible for Complaints against the Israel Security Agency in the State Attorney’s Office, who – with the approval of the Attorney General and the State Attorney – decided to close the investigation in regard to the Petitioner’s complaint because she was of the opinion that the investigation’s findings did not justify criminal, disciplinary, or other proceedings against the interrogators.

Held:

The prosecution enjoys broad discretion in deciding upon the opening of an investigation and in deciding upon filing criminal charges. It is decided law that the Court does not intervene in the manner of the exercise of that discretion, except in exceptional cases in which it is convinced of a substantive flaw in the exercise of discretion or in the resulting decision.

Evaluating the adequacy of the evidence is distinctively a matter for the expertise of the prosecution. Therefore, intervention into a decision not to open an investigation for lack of adequate evidence is even more restricted.

Examining the reasonableness of the decision must be in accordance with the criteria of the Court in regard to the authority of ISA interrogators to employ physical means of interrogation and the circumstances in which such means may be permitted.

Prior to the Court’s decision in HCJ 5100/94  Public Committee against Torture v. State of Israel, the necessity defense formed the basis for the ISA guidelines in regard to the use of interrogation methods that, in the absence of any alternative, permitted the use of physical means where necessary to save human life. Those guidelines were declared unlawful and void in HCJ 5100/94. However, that decision also comprised two holdings of importance to the matters addressed by this petition.

It was held that the necessity defense might be available to an interrogator who employed physical means of interrogation in “ticking bomb” circumstances, and who was subsequently charged with an offense. It was further held that the demand for “immediacy” under sec. 34K of the Penal Law refers to the imminent nature of the act rather than of the danger. Thus, the imminence criteria is satisfied even if the threat will be realized in a few days, or even in a few weeks, provided that it is certain to materialize and there is no alternative means of preventing it.

It was further held that guidelines for the use of physical force in interrogations must be based upon express authority under statute, and not upon defenses to criminal responsibility. No general authority could be founded upon the necessity defense alone. However, the Court added:  “The Attorney General can instruct himself regarding circumstances in which investigators shall not stand trial, if they claim to have acted from ‘necessity’”.

The circumstances of the Petitioner’s interrogation clearly show that the interrogation was intended to prevent a concrete threat to human life of a high degree of certainty. There was no alternative to the means employed for obtaining the information. Those means were proportionate to the severity of the threat they were meant to prevent. The Director’s finding that the use of those means falls within the scope of the necessity defense was grounded.

The Petitioner’s  claim that resort can only be made to the necessity defense in the course of a trial lacks systematic logic and is contrary to the efficient and proper administration of criminal proceedings. Where the prosecution is convinced that a suspect can claim necessity, there is no justification for conducting criminal proceedings that will lead to a result that is clear from the outset.

The Attorney General’s Directives and the ISA’s classified internal guidelines do not contradict what was held in HCJ 5100/94.