Two recent acquittals of mine

כפי שכתבתי בבלוג אחרון זיכויים הם מאוד נדירים

זיכוי של השופטים יפה-כץ, צלקובניק וואגו

זיכוי של השופטת ש’ חביב

Why is the conviction rate in criminal courts in Israel so very high?

Recently I mentioned that the conviction rate in Israel is very high, over 99%. A few days later a friend emailed me, and this was the conversation we had.

JS: I have been sharing your crazy acquittals statistic for Israeli court cases with friends and nobody believes the number. Do you have any articles or other evidence of the number?

SD: There is new research that you can read here http://weblaw.haifa.ac.il/he/Faculty/GazalAyal/Publications/Oren_Gazal-Ayal-Acq.pdf. This new research has statistics of 0.4% or 0.7% acquittals – for accused or accusations respectively.

JS: How does this compare to other countries, especially those with juries?

SD: Generally juries are more likely to acquit. In Israel there are only professional judges, no juries.

JS: What percentage of acquittals emerges from appeals?

SD: Successful appeals against conviction are very rare. Even rarer than in the court-of-first-instance.

JS: If a completely innocent person faces odds such as these, it would a huge gamble to plead not-guilty and go to court.  Which means that loads and loads of utterly innocent people are pleading guilty.  This is massively unjust.

SD: Entirely true. Much safer to plead guilty – preferably with a plea bargain – even if innocent, and get a lighter sentence. Defendants will perjure themselves by pleading guilty for their own benefit.

JS: It seems extremely unlikely that the police and prosecution services in any country are free from prejudice, error and corruption.  I would therefore expect a significant number of cases to reach court where a defendant is determined to prove they are innocent (because they are innocent!) and to allow due process to establish this in court.  The minuscule numbers of full acquittals suggest, at least at first sight, suggest that there is something wrong with the system.

SD: Yes the police and DA are not infallible and of course there are complainants that lie. In defence of the system I must add that there are filters other than the judge: the police who arrive at the scene, the police investigators, a senior police officer who reviews the file, DA or police prosecutor who take the case to court. All or any of these could recommend that the case be dropped even after it gets to court. This has even become institutionalised and a potential accused has the right to a hearing before a prosecutor before he is indicted (= charged). Only cases that the police and DA think are a clear certainty for conviction come to court.

An interesting feature of the Israeli criminal justice system – other than the enormous conviction rate – is the lenient sentencing. From what I know of the UK and USA, judges in Israel are very easy when sentencing. Lots of suspended sentences, community service and first (and second and third) time offenders rarely go to prison. This might counter balance the enormous conviction rate.

JS: Not all cases are clear-cut. In fact, last night, I witnessed a pub brawl.  The police came and everyone had their story. The whole point of a court is that two conflicting parties bring their case and a judge or jury weigh up the evidence and then decide on who was responsible for what. Sometimes, this simply cannot be sorted out any other way than in court.  In which case, you would expect a reasonable number of acquittals.

SD: Everybody has their own narrative, their own point of view. I think that the most powerful person in the Israeli criminal justice system is the policeman who first arrives on the scene. He sees the woman crying and the husband looking worried. The woman says “he hit me and threatened to kill me”, the police do not listen to the man, just arrest him. The woman could be a total liar, but the husband is charged for domestic violence and separated from his family. (That man is also a suicide danger, see  ccfisrael.org/paper .) The chances for acquittal are next to zero. The judge will usually not even examine the evidence because the husband, acting rationally, in his own interest, pleads guilty to avoid prison. You might say that most men in this situation are probably guilty, but the statistic of over 99% guilty cannot be correct. Only 1% of complainants are liars, in less than 1% of cases is there “reasonable doubt” (see en.wikipedia.org/wiki/Reasonable_doubt).

 JS: One would expect from a court case that evidence, or the way it is put, or missing evidence, or case-law, or other factors to mitigate in such a way as to lead to acquittal – less than 1% sounds remarkably small (regardless as to the severity of the charge)

 SD: In a way it is even worse than it sounds. Rarely a judge acquits. More often it is the prosecutor – police or DA – who realising that there is a “danger” of acquittal – offer a deal which is difficult to refuse (plead indecent assault and get no prison time and we will drop the rape charges).

 Also there are many cases with more than one charge and where the accused was acquitted of some but not all of them ie there was a conviction of at least one charge. If a defendant is accused of 12 charges and then acquitted of 11 he would get into the conviction statistic and not the acquittals. This will happen often as a result of a plea bargain: a client pleads guilty to eg attempted assault and the charges of attempted murder and possession of a weapon are dropped.

 So the 0.4 or 0.7% statistics are only for full acquittals after a judge heard evidence and summations. The statistics do not include the partial acquittals or dropped charges (from a plea bargain – very common, or for technical reasons – quite rare). If the offences are more serious judges tend to acquit more. But, in all cases, if the prosecution witness is an adult female relative (domestic violence) or a police officer (eg drugs) then the chances of a judicial acquittal are almost zero. Add this to the large amount of accused held on remand (at least compared to the USA), the pressure to make a deal (plea bargain) is enormous.

 JS: Final question: what do you think about these statistics bearing in mind your own experience if criminality and innocence in cases you’ve been exposed to and what does the legal community in Israel (lawyers, professors etc) think about the meaning behind the numbers?

SD: There is a lot discussion among criminal defense lawyers and in the Public Defender’s Office. A lawyer friend of mine thinks the ease of admissibility of the prior statements of hostile witnesses is partly to blame. I agree. If a prosecutions witness in court contradicts his previous police statement then the judge can receive that police statement and decide which version of events to accept: the oral evidence in court or the written evidence from the police station. I can tell you, that I have never heard of a case where an Israeli judge did not accept the incriminating police statement of a hostile witness! Classic case is again the domestic violence scenario. A woman maliciously lies to the police (do not tell me this never happens). Later she comes to court and shouts and cries to the judge that she lied and that the defendant is innocent. For sure this leads to a conviction. I would expect this to mean there is some reasonable doubt and therefore a potential for an acquittal. But no, such cases invariably lead to conviction.

JS: Sounds like the Israeli legal system has its work cut out to become fair and more in line with the famous statement of Maimonides: “it is better and more desirable that a thousand sinners are found innocent than one day a single innocent person be executed” (Sefer Hamitsvoth 290, and see wikipedia/Blackstone’s formulation).

Small Claims in Israel FAQ

What is a small claim?

This is a quicker, simpler, lawyer-less procedure in the Israeli courts for small claims. Any individual can sue anybody in this court as long as the sum of the claim is less than 32,700 sheqel (see http://elyon1.court.gov.il/heb/agrot/ktanot.htm).

How much will it cost me?

You will have to pay an official fee of 1% (rounded up to the nearest 5 sheqel) of the sum of the claim, but there is a minimum fee of 50 sheqel (see http://elyon1.court.gov.il/heb/agrot/ktanot.htm).

Who can take a claim to the Small Claims Court?

Only individuals. That is, anyone who is not a company (including a partnership or Amutah).

Who can be sued in the Small Claims Court?

Anyone, including the government, local government, a company, any business etc.

I am a tourist, can I sue an Israeli person or company in the small claims court in Israel?

Defendants in Israeli courts including the small claims court are normally an Israeli person or company but plaintiffs can be Israeli or foreign. If the plaintiff is not in Israel this creates logistical problems. An Israeli lawyer could help by drafting the statement of claim and lodging the claim in the small claims court. Anyone with a power of attorney (lawyer or layperson) could appear in court on behalf of the foreign plaintiff. But – and this is the crunch – testimony, the actual evidence, must be given in person and not through a proxy or attorney. I have wondered if a judge would allow testimony by video conference or such like. I doubt it, at least not without the permission of the defendant, who is not likely to give it! So a foreign plaintiff would have to come to Israel and be in court on the set day for the hearing of the evidence before a judge.

What is the maximum I can sue for in the Small Claims Court?

31,900 sheqel. Be careful this figure changes periodically. Note that if you have a claim of more than 32,000 sheqel it still may be worth your while suing in the Small Claims Court and limiting yourself to the maximum sum. So if you have a claim of say 40,000, take the case to the Small Claims Court, and sue for just 31,900 sheqel as you will get your money, quicker and more cheaply in this court.

Where is the Small Claims Court?

The Small Claims Court is part of most Shalom Courts.

Which court should I go to?

You should not go to your local court. You must sue the defendant in a court that has jurisdiction in the area where the defendant lives, or where the activity you are suing for (eg the transfer of goods) was or should have been. This gives you great lee way and as a rule keep clear of the courts in Tel Aviv (Haifa is second worse).

Do I need a lawyer?

The Small Claims Court was intended to be lawyer-less but I would strongly advice you to use a lawyer at least to draft the claim. Especially if your Hebrew is not 100%. You cannot take a lawyer to the court hearing (some judges are lenient about this for people with difficulties).

What is the procedure in small claims court?

Procedure is fairly informal here. The judge will always try and get the parties to compromise, to make an out of court settlement. Some judges are very persuasive (coercive) about this, so if you do not want a compromise (because the judge or the other side have made you an offer you do not think is acceptable) you will need to be quite strong minded.

But do things happen here like in other courts?

More or less yes. Each side will make an opening statement or answer questions put by the judge. The plaintiff will give evidence or call witnesses and the other side will have the right to cross-examine them. Then the defendant will do the same and the plaintiff will have the right to cross-examine. After the witnesses, each side will be asked to summarise their case orally.

 So what should I do?

Get the form from your local court or from the web site. Fill it in. But leave the details blank. The full details of your case (the story of your claim) should be typed in Hebrew on a separate sheet. I think that it is very important to type (remember the judge may not have patience to read scribbles) and must be in Hebrew (this is Israel, Arabic would be good too). Take 3 copies of the form and the typed sheet back to the court and after you have paid the official fee you have a small claim. Now just wait for the defendant’s defence and a trial date.

Where can I get more information?

Try court.gov.il/heb/info/choveret/hesb_ktanot (sorry it’s in Hebrew). And the forms are here court.gov.il/heb/forms/ktanot.htm.

law in israel

שאול דיוויס, עו”ד

Help! I have been arrested

Help! I have been arrested

The first thing I do when I get a new client who has a problem with the police is to tell them to ignore, totally forgot, all that they learnt from “Law & Order”, “CSI”, or any other of the dozens of cops-and-robbers, court-drama programs constantly on television. Life is not like that, not even in the USA, and in any case you are in Israel: the police are not so corrupt, there is no jury, judges are not elected and you are not appearing on prime time TV. This article will try to dispell myths you have picked up from the TV!

Now let us get down to business. What do you do if you, or someone close to you, is either arrested or invited to be questioned by the Israeli Police? Here are some key points to remember.

I want to see a lawyer

Suspects have the right to consult with a lawyer before being interrogated. The police interrogators are impatient to start the interrogation and do not like to wait for a lawyer, but in recent years the police have tried to ensure that the right to counsel is kept. You will usually be allowed to make the famous “one phone call”. Call someone you can rely upon, this could be a lawyer (my number is 054-4222892) tell them (me) where you are and to send you a lawyer to the police station. The thought that a lawyer, or friend, is waiting outside is comforting, and being able to speak to a lawyer, even for a few minutes before the interrogation, can be a big psychological help. If you have not been arrested and are summoned to the police; call a lawyer and consult as early as possible so you come prepared.

If you and your police interrogator do not have a common language you must have an interpreter present. Insist on this. Also, get a lawyer who speaks your language. Minors and the physically or mentally handicapped also have special entitlements, such as  someone neutral being present. If you are a foreign national ask to see your consular official. Consular officials will not arrive in time for you to see them before the interrogation, the police will not wait and in any case most countries will not send anyone, but it is still it is worth a try.

Police interrogation rooms

While in the Israeli police interrogation room, you have a very limited right to remain silent because your silence, your failure to give answers to police questions, is in itself incriminating. My advice is simple: if you are guilty say nothing, if you are innocent say it out loud and clear. It is best to consult with a lawyer beforehand to know if you are innocent or not (this is very often a complex issue). If you did “it” then shut up, say nothing, say you want to consult with a lawyer, say you forgot, say you do not understand, just do not say anything about what you did. Nothing at all. I know this is incriminating (the silence is incriminating), but only to a certain extent, read on. Many convictions in Israel are based on the confession of the arrested suspect with minimal external evidence. Once you confess, it is near impossible to recant. I will say that again, because people do not get it: confess and it is all over. The police will stop gathering evidence and the case is shut. If your lawyer pleads to the judge later that the confession is no good, you can be quite sure that plea will not be accepted. Your confession in the police station is final.

But, if you are innocent – tell all. Where were you at the time of the crime, who was with you, your lack of motive, your lack of criminal record, your fear of knives, your hatred of drugs (pick the true and appropriate arguments). The police interrogation room is the time to say all this. If you say it enough times, and clearly enough, then maybe someone will listen and you get to go home. It is not wise to wait and plead innocence later, do it immediately and loudly, clearly and often. But, if you are not sure of something – eg if you are innocent – then be quiet, silent, that is generally safer.

Never, ever, lie in police questioning (or anywhere else) as your lies will get you in trouble. For example avoid statements like “I have never hurt anyone in my life”, “I don’t own a knife” these simple statements  are potential lies and could be used against you. To avoid lying just keep silent.

Do not forget something very important. Respect. Police officers are human beings, treat them with respect. Speak to them as you would want them to speak to you: politely, respectfully and please no insults, shouting or anything like that. Your first interrogation is very important. You want to make a good impression (you are not the drug dealer, wife batterer that they think you are). Why antagonise with bad behaviour?

Police lies and tricks

The police are allowed to lie and trick a suspect. Yes, you read it right. So when you are told “just sign here”, “it’s just a formality”, “cooperate and you will be out in the morning”, “if you confess now, it will be better for you later” you know these are all big, big lies, don’t you?! If someone says “good afternoon”, look out the window as it could be night, and even then maybe they blackened the windows! That friendly guy in your cell is a police snitch and every word you just told him is recorded. Do not confess, or incriminate yourself in any way, because you have been promised something. The promise will not be kept and you will be stuck with that confession. In these circumstances it is very important to wait and see a lawyer.

The record of the interrogation

What a person says under police interrogation is of primary importance. So it is a disgrace that there is not usually a proper record (video or audio recording) of police interrogations in Israel. A law was passed mandating this but it is not often implemented because of the high costs. (If the suspect does not know Hebrew or is suspected of a serious felony then the interrogation will be recorded.) There is almost no way to cancel a confession or other incriminating evidence taken by the police orally. The police officer will type all that you say. This is problematic, so you have to speak clearly and slowly and be very, very careful what you say. Do not allow anyone to put words in your mouth, only what you say should be written down, and make sure anything important you do say is written. At the end you will be asked to sign the interrogation transcript, do not sign unless you read every single word, and understand it all and nothing has been missed out and nothing added that you do not want. If you cannot read Hebrew, or decipher the handwriting then obviously you should not sign. Actually my best advice is not to sign at all, it is just too dangerous.

Will I get out tonight?

A senior officer at the police station will decide, usually once your interrogation has been completed, what should be done with you. The following are the common options:

(1) You could be released straight away on bail and obviously this is the best option. You should then be released on your personal recognizance (self guarantee) or a non-cash, personal, or third-party, bond (guarantee) or more rarely a cash bond (returnable deposit). Sometimes a condition will be added eg to leave town for a few days, or not to contact witnesses.

(2) You could be sent to court to be released on bail. Sometimes the police agree that a suspect should be released but asks the court to set the terms. The big disadvantage is that depending on the time of day,  you will have to wait until the court opens (in the morning, or Saturday night) and the terms will be stricter.

(3) The worst is if the police apply to the court that you not be released and this will almost always occur if you are suspected of any serious crime, and/or you have a police record. The police will usually apply for a few days of arrest and before those days are finished they could apply for you to be held on remand until the case is finished. A judge will decide to arrest you or to release  you on bail and in court you will be entitled to full legal representation.

Do not panic at the thought of spending the night in jail. Israel is not Chicago or Istanbul, you will be treated OK. You will breathe lots of cigarette smoke, maybe see drugs and the bed is uncomfortable and the toilet dirty but you will not be mistreated (homosexuality is exceptional in Israeli prisons and you will not be raped). Do not let the police intimidate you with the threat of a night in a cell, there are worse things.

The conviction rate in Israel

Finally, I have to tell you the bad news: more than 99% of all criminal cases brought before Israeli courts end in convictions (ie a “guilty” verdict). That figure is a real statistical calculation and is not a rough estimate or an exaggeration though does not include the many plea bargains where some or most of the charges are deleted from the charge sheet. That statistic means that cases get decided in the police stations and at the district attorneys’ offices. If the police think you are guilty then so will the courts. If you have persuaded the police you are innocent, they might not prosecute. So, what happens during your interrogation is crucial.

Law in Israel

שאול דיוויס עו”ד

 

Scottish Police 1911

Police Group - Edinburgh Police 1911 from Police Group from http://www.flickr.com/people/bruce_r/

 

Article published in Bar Magazine Feb 2011 – מאמר “גילוי נאות”, ביטאון לשכת עורכי הדין מחוז דרום

This is an article I had published in the Israel Bar Magazine, “Giluy Naot” of February 2011. I discussed a way of increasing court efficiency in criminal trials and cutting down the amount of time the accused are held under arrest.

page one

Article in "Giluynaot" Feb 2011 p 1

page two

Article in "Giluynaot" Feb 2011 p 2

Do children inherit parent’s debts?

I was recently asked:

“A friend of my daughter told her that when a parent passes away his or her debts [banks, bituah Leumi etc] are passed on to the children even if they didn’t sign. This doesn’t seem right. Is this the law in Israel?”

And I recently answered:

“I am not a real expert in the field but this will pass as a good answer. Debts do not pass on to children, spouses etc when a person passes away. I am not making a pass at you, I am past that. The debts remain part of the estate (= izavon עיזבון) because the estate is the net worth of a person, assets minus debts. When a person passes away the inheritors inherit the estate. Inheritors could be children, other next of kin. If there are debts these must be paid before the assets are passed on to the inheritors. Children do not pay the debts anymore than passers by do, the estate pays the debts. If the assets are not substantial enough to pay the debts, the creditors just do not get paid. This is the law in most places in the world including Israel, it seems right to me. I am passionate (sorry that will really not pass for pass). An important exception is if a family member signed a guarantee (= arevut ערבות), a debt would pass on to a guarantor upon the debtor’s passing. Enough passing for now.

This is a common misunderstanding – do not pass by this link it passes for fun google.com although the results are confusing. It is past my bedtime now.

Name and Address of a Property Owner

People often ask me how to track down the owners of properties. You might want to do this for a variety of reasons; and your lawyer - before you sign a lease or buy a property - must do this (usually steps 1, 2 and 4). The procedure is complicated, requires a serious knowledge of Hebrew and some internet capabilities above the average.

1. You get the exact address and go to http://www.gov.il/FirstGov/TopNav/OfficesAndAuthorities/OAUList/ConstSurvey/firstGovGushcalculator/. This is a free government service to convert the address to lot and parcel (= gush and helqa) numbers.

2. Then go to any one of the sites that offer Land Registry Deeds (= nesah tabu) online, the best seems to be http://ecom.gov.il/Counter/alternative/tabuNesah. There is a small charge for this. From the deed you will learn the name of the landowner (or the lessee as most land in Israel is owned by the state and leased), including his or her ID number.

 

3. Now go to the Ministry of Interior, Office of Population Control (=Misrad Hapnim) and ask for this person’s details including address (= ittur maan). Try http://piba.gov.il/Pages/default.aspx but as far as I know this is not something you can do online. You will have to suffer the queues at the Ministry of Interior. Of course people, usually the problematic ones, do not update their addresses so this information could be outdated.

4. If the landowner/lessee is a company you use the company registration number (=het peh) or just the company name to get the company’s details at http://147.237.72.24/WebOJSite/CompaniesList.aspx. For the owner or managers of the company go to http://ecom.gov.il/counter/alternative=companyextract using the het peh (this is not free).

Complicated? Yes.

There are other ways of tracking people down. www.google.co.il is one very good one and another is to hire a private detective!

Saul Davis, Adv.

law in israel

שאול דיוויס, עו”ד