Here is Sunday's translated court ruling in full:
HONORABLE JUSTICE SHIMON FEINBERG
CASE No. 011944/07
THE STATE OF ISRAEL,
REPRESENTATIVE OF THE GOVERNMENT
APPEARING BEFORE THE COURT:
For the Plaintiff: Nili Gesser, Esq. and Marilyn Mazal-Hershkovitz Esq.
For the Defendant: David Ofek, Esq. and Tzivia Golovik Esq.
In the matter of the request to extend the detention of the Respondents pursuant to Article 7 of the Extradition Law of 1954 ( “Extradition Law”).
In 1985 the Respondent was issued an indictment in New York, United States on the charges of sodomy and other sexual assaults against five minors between the ages of nine through fifteen. The authorities of the United States issues an arrest warrant against him. However, before they were able to execute the warrant the Respondent fled to Israel. That year, the American authorities requested that the Israeli Government extradite the Respondent back to the United States. At that time the treaty between the two countries did not allow extradition for the crimes the Respondent was accused of. The State of Israel decided to remove him from the country. During that process, the Respondent appealed to the Israeli Supreme Justice Court and the State Of Israel decided to abandon the proceedings of his removal. From that time On, the Respondent has been living with his family in Israel.
During the course of the past year the protocols of the extradition treaty were modified in a manner in which the crimes that the Respondent stands accused of by the courts of New York became extraditable crimes. In September 2007, the United States authorities requested the extradition of the Respondent from the State of Israel.
The Respondent was arrested on November 11, 2007 pursuant to Article 6 of the Extradition Treaty. The Requester is requesting an extension of the Respondents incarceration for an additional 12 days for the purpose of obtaining an updated extradition request to amend the request filed many years ago.
A hearing of the allegations was held before this Court on November 16, 2007. The Representative today introduced the following additional facts. In May of 2007, a search was conducted of the Respondents home where four films containing child pornography were discovered. The Requester also argued that the likelihood of the Respondents fleeing is high if he is not detained, because of his recent knowledge of the change in the Extradition Treaty which now allows his return to United States. The Requester further argues that the Respondent is a threat to the public as evidenced by the above material discovered in his home.
The Respondent argued that there are issues of statute of limitations and extensive period of time that has passed since the initial extradition request was made and denied. The Respondent requests that he be released in a manner which assures that the Respondent will reappear once the extradition proceedings commence, even suggesting that the Respondent be released to house arrest and monitored via an electronic monitoring bracelet.
The first question to consider is if the Respondent is a candidate for extradition based upon the revised extradition treaty? (See paragraph 6 of the extradition treaty.) We need to answer this request in a positive manner. The treaty between the two countries today states that these offenses are extraditable crimes. The Requester holds affidavits given on behalf of the victims/complainers against the Respondent about the crimes that the Respondent committed. All this evidence is the basis for the indictment against the Respondent, by the Unites States government.
Regarding the Respondents claim as to the statute of limitations and the large amount of time that has elapsed, Paragraph 2B (a) 6 of the extradition law, the upholding of the law is conditioned upon the time of the crime or it's punishment not exceeding the statute of limitations according to Israeli law. According to paragraph 9 (a) 2 of the Israeli criminal code of 1982, a person cannot be prosecuted for a crime (except in in death penalty or life in prison cases) if a period of ten years have past since the day the crime was committed. According to paragraph 9 (3) the statute of limitations commences either from the time of the last day of the investigation, or the day of the indictment or the last day of the proceeding in a court of law, whichever comes last. In our case, all of the proceedings as stated in paragraph 9 (3) above, occurred over ten years ago. The Representative of the government expressed that the statute of limitations might be an issue, however the courts in previous verdicts have recognized other cases where the statute of limitations was frozen where the accused has escaped before prosecution. Based upon paragraph 94-1 (3) of the criminal code, we can come to reject the claim against the statute of limitations.
(See criminal appeal 739-07 (supreme) Yonatan Efrat Vs. Attorney General)
I have reviewed this case and concluded that there is a solid basis for the Requesters request regarding the statute of limitations, however this issue has some effect on my decision as to keeping the Respondent incarcerated as I will explain.
Another question that paragraph 6 of the extradition law raises is if there is a probable cause , that an extradition request shall be filed? To that we answer in the affirmative, and the United States government has declared specifically that it will do so.
According to the previous decisions, in a hearing where the subject is in accordance with paragraph 7 to the extradition law, the court shall consider the regular arguments for keeping a person in custody, among them being the safety of the public, the concern of interfering with the investigation and primarily the fear of the accused fleeing, which is a permanent concern in a case of an extradition proceeding. In addition, the court shall consider the commitment that Israel has towards the requesting country – a commitment that is established in an international treaty that is the basis of the extradition law- to extradite the suspect and allow his extradition to the requesting country. This last consideration is a crucial one in a sense that at times it is justified to keep a person in custody even though general custody considerations state that he is to be released, because of the extra dimension that is as a result of I Israels duty towards the requesting country. [Hon. Justice D. Banish (aka.) see case #4422/03 Yitzchak Cohen Vs. Attorney General]. These considerations are brought into account also during a proceeding of a requesting of incarceration prior to declaring a person extraditable [See case Jerusalem 11287/04 attorney General Vs. Zev Rosenshtien].
In our case, consideration for continued incarceration evolved from danger to the public and fear of the accused fleeing from justice. As to the consideration of danger to the public, findings of the investigation against the Respondent by the Israeli Police Department create a probable cause that the accused is still an active or potential pedophile. The fact that against the accused no criminal offenses have been brought does not negate the known danger of these offenses, especially in the ultra orthodox sector that the accused belongs to, because the victims and their families very often do not complain to the police because of the will of that sector to attempt to solve those problems internally without police involvement, to avoid humiliation to the family. I am not establishing that the accused has commenced any crimes in Israel, but I am not ruling that out either. The fear of fleeing from justice evolves from the revised treaty that allows the extradition of the accused to the United States, a situation that did not exist during the entire period of the accused stay in Israel. Additionally, one must bring into account the commitment of the State of Israel towards the requesting country that was established in an international treaty that is the basis of extradition law.
All of the above leads me to the conclusion to grant the Representatives request and to hereby order the continued incarceration of the accused. Nevertheless, due to the legality of the statute of limitation as I stated above, there is no room to rule out a potential alternative to incarceration as suggestion by the accused council.
Therefore, I hereby extend the incarceration of the accused as requested until November 27, 2007 at 12:00 PM. I am ordering a recommendation report of the Probational Service Office for consideration of a substitute for incarceration including house arrest with an electronic monitoring device. The report shall additionally consider the danger that the accused possesses. The report shall be submitted before the end of the term of incarceration. The report may be used by this court if an additional request for incarceration is filed according to paragraph 7A of the extradition law or if there is a request to declare the accuse as extraditable.
The secretarial office shall send a copy of this decision to the probation service office.
Given today November 18, 2007 in the presence of all parties.
Shimon Feinberg, Judge