A young Palestinian, Imad Ganimath, from the village of Surif in the Hebron District, was accused of automobile theft. A magistrate's court and a district court ordered him remanded until the completion of the legal proceedings against him. The Supreme Court, however, ordered him released on bail under restrictive conditions.
The legal ruling, which the Supreme Court handed down following an appeal and a hearing in 1995, asserted that it is not enough for an offense, such as car theft, to be considered a "national epidemic" in order to detain a defendant if there is no proof he or she is "dangerous." The ruling became a cornerstone of the constitutional right to personal freedom.
The judgment gave concrete meaning to the three-year-old Basic Law on Human Dignity and Freedom, which accords personal freedom the status of a constitutional right. That right is further reinforced in a general provision that states the Basic Laws' point of departure is that each individual is a "free person."
The right to freedom prompted the High Court of Justice to annul a provision of the Military Jurisdiction Law, under which a soldier could be held for four days before being brought before a judge. The ruling notes that infringing on this right creates a ripple effect in terms of its implications for other rights, such as freedom of expression and human dignity.
Against this background, the basic concept of the Criminal Procedure Law - under which a person who is presumed dangerous can be arrested before his case is decided by the court - is accepted only when prima facie evidence exists that he physically assaulted another person. This approach is consistent with the importance of personal freedom.
Running contrary to this position is a new legislative memorandum formulated by the Justice Ministry, which is seeking to change the Criminal Procedure Law. The proposal is to add breaking and entering a home and vehicle theft to the list of offenses whose perpetrators are "presumed dangerous." Both of these are property offenses. The ministry explains that these are very frequent offenses that may lead to violence against home occupants or endanger public security, in the event of an escaping car thief.
The proposal does not mention that it would bring about the annulment of the Ganimath ruling, which was handed down by the Supreme Court after many hearings. All seven justices on the panel agreed that just because a certain offense is a "national epidemic," this is not sufficient grounds to place a defendant in custody, and that the prosecution must prove that he constitutes a risk to public security in order to justify pre-conviction arrest.
The justices noted the importance of the prosecution persuading the court that evidence shows prima facie that the defendant poses a public danger, should he be released before his sentence is passed. Placing the burden of proof of "non-dangerousness" on the defendant, as the Justice Ministry is proposing, could turn out to be an unreasonable burden and further increase the already large number of arrests.
Presuming someone accused of property offenses to be dangerous is contrary to the "watershed" handed down by the expanded Supreme Court panel, whose approach is that arrest is merited in special circumstances, and only in the case of offenses relating to bodily protection, not to property alone. The justices believed that the Basic Law on Human Dignity and Freedom forbids arresting a person if there is no proof that he is dangerous, and that arrest may not be used merely to deter people from committing a widespread offense.
The Knesset is, of course, empowered to change the law and annul a ruling, but using arrest as a deterrent, which is liable to become commonplace, is contrary to a basic approach of criminal law. If the proposal is accepted, judges may call for arrests too lightly. The proposal appears to be a fight against "small-time thieves," at a time when preserving public security obliges a battle against violent offenses - such as seizing a knife from a youth at a club, or any other instrument that concretely heralds violence.
The current proposal is disproportionate, owing to its severe infringement on the right to freedom. It is unexampled in countries that follow the Anglo-Saxon legal tradition. In France, too, whose legal system is based on investigating judges, presuming someone dangerous in order to use his arrest as a deterrent is unknown, as attorney Ron Sofer found.
Under Israel's legal system, suspects can be remanded until the completion of legal proceedings against them if prima facie evidence exists for a serious property offense, such as in the case of the Trade Bank, but this is within a specific framework: The prosecution must show that releasing a defendant before the end of proceedings would prove a public danger. Changing the "rules of the game," as is now being proposed, constitutes a disproportionate and unworthy infringement of the right to freedom.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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