Leading Decisions of the Supreme Court of Israel and Extracts of the Judgment (original) (raw)
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A Digest of Selected Judgments of The Supreme Court of Israel
Israel Law Review, 1988
The following survey of major judgments of the Supreme Court of Israel published in (1989) 43 Piskei Din, volumes (iii) and (iv), together with the survey which appeared in (1991) 25 Is.L.R. 107, completes the digest of major judgments published in the four volumes of (1989) 43 Piskei Din. I. Constitutional and Administrative Law Ben Shalom & others v. Central Election Committee for the Twelfth Knesset & others (1989) 43(iv) D.P.
Law US/Israeli comparative Law Summer 2009
This course compares the various facades of the Israeli and American Legal Systems. Both systems derived from the British Common Law System, however each developed its own uniqueness in accordance with societal and legal forces, each distinctive to its own society with its unique history. For example, the legal system of Israel today belongs to the family of mixed jurisdictions combining tenets of the Common Law and the Civil Law, with Israel's unique history and characteristics, and the revolutionary changes in the legal system since the independence of the state. We will discuss the centrality of the Judiciary and compare the Supreme Courts and the High Courts of Justice in both countries, particularly their conduct in the arena of the protection human rights and civil rights, particularly of minorities, under the American Constitution and under the Israeli Basic Laws. We will also study the structures of the general court systems in both, while paying special attention to specialized courts. Amongst those, a special attention will be given to the study of the religious court in Israel, its centrality in the life of Israelis and in the shaping of the laws of personal status, such as the absence of civil marriage and divorce and the position of women in Israeli society.
The question of what qualifies as a manifestly unlawful element is not purely academic. It is a practical, day-to-day dilemma for every subordinate in an executive body, who must decide forthwith whether or not to obey an illegal order. In the Israeli legal system there are, to date, four distinct approaches for identifying manifestly illegal orders. As such, the rationale for the superior order defense - the construction of a legal method to balance the principle of the rule of law and excuse and justification factors - is rendered meaningless. This Article examines the different approaches of the superior order defense in Israeli case law. Their examination shows that each one of them is unsuitable at one time for a specific set of circumstances when an appropriate balance between the rule of law and other public interests is not achieved. On the basis of the advantages of each of the four approaches, and in accordance with the central trends in Israeli case law concerning this legal issue, a new approach is suggested - the integrated approach.
Some Observations About Jewish Law in Israel's Supreme Court
2009
... Law], 25 'IYUNEI MISHPAT [TEL AVIV UL REV.] 467, 48081 (2001) (obligation to look to Jewish law is for comparative purposes, but not for binding precedent or for investigating the extent to which one should adopt the advice of Jewish law); Hanina Ben Menachem, Chok ...
The Israeli criminal justice system in action—Is justice administered differentially?
Journal of Quantitative Criminology, 1997
This study focuses on two major junctures in the Israeli criminal justice system, the preadjudication stage and the trial stage. The data are gathered from records accumulated during the period 1980 through 1992. For each year between 1980 and 1992, a random sample of 3637 persons, who had their first police contact during that year, was drawn from the computerized central file at Israeli Police Headquarters. A total of 40,007 individuals, with a total of 97,000 records, constituted the study population. The results identify which criminal records were most likely to be terminated prior to adjudication and which records, once adjudicated, were most likely to conclude in conviction. Major emphasis was placed on the issue of nationality--being an Arab or a Jew--while the effect of other variables, such as the type of offense and the time period, were controlled. The criminal justice system was found to be less discriminating at the early stages of the criminal process, but as the offender moved along the process, the chances that nationality would play an important part increased.
Are Crime Victims Being Gagged Under the Israeli Criminal Justice Procedures
International Journal of Criminology and Sociology, 2014
In this conceptual article we examine the issues revolving around crime victims' participation under the Israeli criminal procedure in recent years. As such, the article discusses the official status of victims, the protections guaranteed by local legislation during the various legal stages-beginning with the criminal investigation procedure through the protections guaranteed under law, and their routine implementation. Specifically, the article discusses changes in Israeli legislation and practice in regard to victims' rights, while comparing them to those in other countries. Further, the article discusses the introduction of restorative justice to legal procedures in Israel, and its relevance to victims' rights. It concludes with a recommendation to establish a standardized policy that will assure victims' rights in order to secure their status while also ensuring that they are being exposed to a therapeutic process that is much needed for the victims, and in particular for domestic and sexual assault victims.
In 1992, the Knesset (Israeli parliament) enacted two basic laws, Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. The enactment of the two laws was hailed as the first step in establishing an Israeli bill of rights and was referred to by jurists as marking the beginning of a "constitutional revolution" in Israeli law. Two main issues needed to be resolved by the courts after the enactment of the two Basic Laws. The first was the scope of the Basic Laws. The second was their status within Israeli law and in particular their implications for judicial review of primary Knesset legislation. The second question was resolved relatively shortly after the Laws' enactment. In the 1995 decision of United Mizrahi Bank Ltd., the Supreme Court determined that the Basic Laws had supra-legislative, constitutional status and, accordingly, that the Court had the power to declare void primary legislation that contradicted the Basic Laws. While the decision was initially criticized by many, it has since been reaffirmed on numerous occasions. The dispute with regard to the scope of the Basic Laws, however, and in particular the scope of Basic Law: Human Dignity and Liberty (hereinafter: the Basic Law"), is ongoing. The Basic Law explicitly protects the right to life, body and dignity of the person (Articles 2 and 4), the right to property (Article 3), the right to personal liberty (Article 5), the right of all Israeli nationals to enter the country and the right of all people to leave it (Article 6), and the right to privacy (Article 7). All of these rights had already been recognized by the Court prior to the enactment of the Basic Laws. With the Basic Law’s enactment, however, and following the United Mizrahi Bank decision, these rights were elevated to the status of constitutional rights. The enactment of the Basic Laws raised questions regarding the status of other rights previously recognized in case law but not explicitly named in either of the Basic Laws. These included rights as important and central as the right to equality, freedom of religion and freedom of expression. Such rights were referred to as the "unnamed" or "unenumerated" rights. The dispute centered on the question whether the Court could interpret the Basic Laws as awarding constitutional protection to such unenumerated rights. The present article examines the manner by which the Court determines which unnamed rights fall within the scope of the Basic Law. It examines the models of interpretation applied by the Court when recognizing certain unnamed rights while refusing to recognize others. The article argues that different approaches with regard to recognition of particular rights are rooted in different value-based worldviews regarding the essence of human dignity, and argues that the lack of a clear test for the recognition of unnamed rights results from the absence of a robust, well-developed notion of human dignity in Israeli constitutional law. The article purports to demonstrate the importance of developing a concept of human dignity that encompasses the different values and world-views that exist in Israeli society.
Israel Law Review, 1997
BOOKS 857 did not take into account the advisory (sic) opinion of the Secretariat. ... Contrary to the Secretariat's opinion, this session overlapped with more than one regular session and has still not been closed". This discrepancy stems perhaps from the change of contributors to this commentary that occurred between 1991 and 1994, as a result of the passing of the late Prof. Zieger. However, these remarks are not intended to detract from the great and lasting value of this book. The editors and contributors should be congratulated on having produced this important work of collective scholarship which for many years to come will benefit researchers, practitioners and students alike. Yehuda Z. Blum
Human Dignity in Criminal Procedure: A Comparative Overview of Israeli and German Law
Israel Law Review, 2011
German constitutional law proclaims to grant human dignity “absolute” protection, whereas Israeli law permits a weighing of human dignity against other important interests. In spite of this difference in principle, German and Israeli law arrive at remarkably similar results with respect to the regulation of “dignity-sensitive” areas of criminal procedure, such as the privilege against self-incrimination, the search of the body and the home of suspects, and secret surveillance of private communications. With regard to privileged conversations, Israeli law provides for even stronger safeguards against state intrusion than German law. The protection against forced self-incrimination, by contrast, goes further under German law. In order to optimize the protection of human dignity in the criminal process, the authors suggest a strict distinction between measures designed to investigate past offenses and those aimed at preventing crime.
I•CON (2020), 1–16, 2020
The leading legal literature published after 9/11 recognizes the exception only in emergency. These writings follow the concept that "necessity knows no law" and, as Manin puts it, "se-curity is the only acceptable principle" which justifies arbitrary coercion in liberal theory. Although Carl Schmitt criticized such liberal legal writing, including Hobbes's sovereign, in that it does not recognize the power of the political identity, Schmitt's sovereign also appears to decide on the exception only in "extreme emergency." Accordingly, the judiciary's political role is marginalized as the court always arrives too late, due to the urgent need to respond immediately. Based on this literature, court decisions always fall within the realm of legality, especially in non-emergency cases. In this article, I argue that the exception also appears in non-emergency cases and that the judiciary plays a serious role in normalizing the exception when the government acts without any legislative authorization. I further argue that these judicial decisions tell us about the very essence of the state's political identity as it is linked to the authorities' understanding of the state's sovereignty. The case study that I examine is Israeli Supreme Court decisions that deal with cases brought by Palestinian citizens of Israel concerning territoriality claims, such as the right of property and the right to live in specific places with basic services. These cases were decided after the enactment of the Basic Law: Human Dignity and Liberty in 1992, which is considered to be part of the "constitutional revolution" in Israeli legal discourse.