Israeli judicial system

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The Israeli judicial system (or judicial branch) in Israel, is an independent branch of the government which includes both secular and religious courts.

Contents

[edit] Secular courts

[edit] Supreme Court

Located in Jerusalem acts as a further appellate court, and as the High Court of Justice as a court of first instance, often in matters concerning the legality of decisions of state authorities.

[edit] District courts in Israel

The District Courts in Israel serve both as as the appellate courts and also as the court of first instance for some cases (e.g. real estate or IP). As of 2007, there are six district courts[1]:

[edit] District Court for Administrative Matters

Adjacent to every District Court is the Court for Administrative Matters, where petitions against Arms of the Government can be launched.

[edit] Magistrate courts

Also called "Peace Courts", the Magistrate Courts in Israel serve as the courts of first instance up to a certain ceiling of two million shekels. There are 30 magistrate courts[2].

[edit] Small Claims Courts

Adjacent to any Magistrate Court, is a Court of Small Claims, for claims up to approximately 18,000 Shekels or $4,500. These Courts do not follow standard evidenciary rules, however they require extensive pleadings and documentation upon filing of a formally written complaint. Verdicts are expected seven days from trial.

[edit] Traffic Courts

[edit] Labor Courts in Israel

There are five Regional Labor Courts in Israel as a tribunal of first instance, and one National labor court in Western Jerusalem hearing appeals and few cases of national importance, as first tier. They are vested with exclusive jurisdiction over cases involving employer-employee relationship, pre-employment, post-employment strikes and labor union disputes, as well as labor related complaints against the National Insurance Institute.

The Labor Courts Law sets forth those matters within the jurisdiction of the Labor Court. Substantially all causes of action arising from the employer-employee relationship are within the court's jurisdiction.

In civil matters, the Labor Courts are not bound by the rules of evidence. Most cases are heard by a panel of three, including a Judge, a representative on behalf of employees and a representative on behalf of employers.

These representatives have been criticized for taking too passive a role in the court's decision-making process.

Cases can languish for years in these courts, as the calendaring of hearings is usually every six months in the life of a typical case. The aggrieved worker may be waiting for redress for years, while his employer may go out of business.

[edit] Court of Admiralty

All matters have to do with admiralty, shipping commerce, accidents on sea and the like are brought to the Court of Admiralty in Haifa, with has exclusive Statewide jurisdiction.

[edit] Jewish religious courts

See also: Religion in Israel
See also: Batei Din

As of 2005, the Jewish religious authorities are under control of the Prime Minister's Office and the Chief Rabbinate of Israel. The Chief Rabbinate deals with matters of kashrut (Jewish dietary laws), marriage, ascertaining the qualifications of local rabbis, and other matters relating to Jewish religious law and custom. The religious Services Authority in the Prime Minister's Office is in charge of the funding of Jewish religious services, including local religious councils. In addition, the Prime Minister's Office provides the framework for special "batei din" which deal with conversion to Judaism ("giyur")

The Rabbinic Courts courts, whose dayanim ("judges") are selected by a committee headed by the Minister of Justice, have jurisdiction regarding marital issues of Jews (especially divorce). Divorce of a Jewish couple can only be obtained at the Rabbinical Batei Din. However, if a petition for ancillary matrimonial reliefs, such as custody, support or equitable distribution of property is filed with the Civil Courts before a case for divorce is opened at the Batei Din, then all other marital issues may also be taken by the secular Family Courts. Otherwise, if one spouse opens some sort of an action with the Batei Din, (including the ambiguous demand for reconciliation), the Batei Din assume that all ancillary relief is aggregated into the main complaint, and the spouses may find themselves facing judicial deermination pursuant to Halakha (Jewish religious law), and not pursuant to the secular law. Thus, spouses may lose the equal protection and anti gender discrimination protections of the secular civil law.

[edit] Non-Jewish religious courts

The other major religions in Israel such as Islam and Christianity are supervised by their own official religious establishments (although the Muslim and Druze kaddis judges are also elected by the Knesset), which have similar jurisdiction over their followers, although Muslim religious courts have more control over family affairs. This is the maintenance of an agreement reached with the British Mandatory Authorities before the State of Israel's establishment in 1948.

[edit] Israel's Military courts

The Military Court of Appeals is the highest judicial body in the Israeli military, which also includes the District and Special military tribunals. Israel’s Military Courts handle both ordinary cases of the occasional soldier’s AWOL or dope smoking and cases brought against Palestinian insurgents, terrorists, saboteurs and bomb makers. In the latter capacity it is in operation since 1967, when Israel occupied the West Bank and Gaza Strip. An average of 10,000 Palestinian detainees are being processed annually through these Courts. The rate of acquittals in 2006 is reported to be 0.29 percent according to ”Yesh Din” [1], an Israeli human rights organization monitoring these courts. While normally military defendants have a right to counsel, in practice many are denied visits with attorneys simply because Palestinian attorneys are either denied access to Israel, where the defendants are detained, or Israeli attorneys are denied entry permits to such facilities. The housing of Palestinian detainees inside Israel is said to be in violation of the Fourth Geneva Convention, Article 76. Accusatory Indictments in these proceedings do not reveal the true and full nature of the charges. Relatives of the detainees are often not informed of the arrests. The length of detention is undefined, resulting in prolonged periods of detention without official charges being filed. Proceedings are in Hebrew, and the accused do not receive translated copies of the Court papers into Arabic. These Courts are criticized for dispensing “backyard justice”, which is often arbitrary and in violation of international standards.

[edit] Disciplinary Court of the Israel Bar

[edit] Controversy

In 2001, an Israeli court sentenced a Jewish settler to six months of community service and a fine of 70,000 shekels, for beating a Palestinian child to death. The decision was denounced as an outrage by human rights organisations. The Jerusalem district court said it decided not to jail Nachum Korman for the killing of the 11-year-old Hilmi Shusha because the killer had only been convicted of manslaughter by negligence, and had already served eight months in prison. The B'Tselem human rights organisation said the sentence was part of a pattern of turning a blind eye to abuses of Palestinians by Israelis while "showing no mercy" to Arabs accused of causing injury to Jews. It also said that this pattern prevailed long before the intifada. The decision deepened criticism of systematic racial prejudice in Israel's law enforcement system.[3]

[edit] Lawyering and the Legal Practice in Israel

A lawyer practicing in Israel faces many challenges, including radical interpretation of law and lack of predictability, cultural attitudes that affect attorney client relationships, judicial temper and built in sanctions in the law that penalize negligent work, keeping up with new developments, maintaining relations with adversaries, and external forces, such as power clashes between the Executive and the Judiciary arms of government.

Blending all these factors may result in what appears to be an extremely argumentative, vindictive, formalistic, lengthy, overburdened with paperwork, expensive and frustrating legal environment.

  • Saturated Legal Market in Israel. There are approximately 35,000 attorneys licensed in Israel, with law schools producing new graduates at the rate of 2,000 new lawyers a year. This creates a tight and highly competitive market. Market surveys find that the percentage of attorneys per one thousand inhabitants in Israel is one of the highest in the world. Consequently, attorneys in Israel are forced to reduce rates and offer sub specialties in niche practices to be competitive.
  • Old School v. New Generation Lawyers in Israel. The legal community is divided into two groups: Old School attorneys and Fresh Graduates.[citation needed] The latter are defined as those admitted within the past 10 years. This phenomenon is a product of the opening of Law Colleges (as opposed to established universities), within the past 15 years, where admission requirements have been significantly reduced.[citation needed] Thus, it is said that the Fresh Graduates are inferiorly trained. However, in reality, the recently graduated outnumber the Old School by a ratio of approximately 2:1. Old School lawyers cloak themselves with an aura of dignity and respect[citation needed] , and tend to spice their arguments with ancient proverbs in Aramaic, as well more archaic Talmudic lessons.[citation needed] The younger generation is constantly being criticized for speaking plain Hebrew, introducing slang, and discarding unnecessary formal gestures.[citation needed] It is claimed that they devalue the reputation of the legal profession in Israel.[citation needed]
  • Collegiality in Legal Practice. Collegiality was inherited from British Common Law as the notion that attorneys who are members of the same profession are akin to brothers and sisters, and must accommodate each other's prior engagements, and treat each other with respect and dignity. Ethical rules establish this in no uncertain terms, and attorneys using vulgar and profanities against their colleagues are vigorously prosecuted[citation needed] . However, recent years have muddled the notion of collegiality in Israel, and it no longer the same as practiced in the U.S. or the UK.. In fact some observers lament the loss of collegiality[citation needed] , which has all but become extinct in Israel. There are several undesired outcomes resulting from this trend. A lawyer practicing in in Israel must constantly guard against adversaries communicating ex parte with the Court[citation needed] , or submitting Court applications without notice to the other side. Asking for the favor of an extension may never be taken for granted. This trend also contributed to the creation of a "Win At All Costs" culture[citation needed] , which results in professional frustration and desperation among many litigators.
  • Societal Norms in a Country at War. Observers of the legal profession, and other monitoring associations have noted that the general stress of living in a country which is in a constant war has created a nasty, vindictive legal culture, where it is commonly believed by Israeli lawyers that the key to winning is by humiliating, inflicting pain and smear campaigns. Many indicted officials in Israel commonly defend themselves claiming that the indictment was tailored, i.e. manufactured and concocted to take revenge by use of unsubstantiated proof. Legal scholars from around the world, as well as NGOs who monitor international civil rights, such as Amnesty, regularly note that the legal system itself, although it appears to be democratic and socially advanced, embodies into it draconian tools designed to oppress the Arab minority and the Palestinians who are affected by the political policy of occupation [5], which Courts tend to overlook.
  • Interpersonal Relations and Self Fulfillment. The addition of thousands of new lawyers every year, creates a "focus on yourself" culture that is so pervasive, some critics report that even Judges worry only about their reputation and promotion. Reports in Israeli press in 2007 have traced legal stories in the news to leaks from Judge's family members in order to aggrandize their names. A feedback survey conducted by the Israeli Bar among lawyers assessing Judge=s performance report complaints of excessive judicial insults, judicial impatience and unpreparedness. it is common criticism in Israel that Judgments written by Judges can never be predicted, as the doctrine of stare decisis (controlling precedent) is not followed, thus adding a frustrating dimension to the legal practice. In addition, complaints to the Chief Supervising Judge at Israel's Court Administration, which were made public, report Judicial bias in favor of comrade attorneys, nepotism, using official position to influence appointments of family members to Judicial posts, and non merits promotions. There is also an inherent conflict of interest, when certain lawyers are members of the Committee for Election of Judges, which gives these lawyers and the law firms they are affiliated with powers to affect Judges' promotions. Another factor affecting a build up of professional frustration is the severe backlog in rendering Judgments. Judges can, and often do keep cases open for five years and more. Such cases languish without activity for years after trial, and there is actually no mechanism in place to expedite the issuance of judgments. The long life of a case in Court is said to be a hindrance on effective justice. At the Supreme Court in Jerusalem, ordinary litigants can expect their first Court appearance scheduled one year, or more, after filing, and Judgments can languish for two or three years after final oral argument.
  • The Israeli Judiciary Skirmishes as Reflecting on the Legal Practice in Israel. Israeli press is saturated with reports of animosity among Judges in Israel. Recently, a Tel Aviv Judge sued her Supervising Judge for refusal to grant her certain administrative privileges. In 2007, the current President of the Israeli Supreme Court, the Hon. Dorit Beinish, is involved in a highly publicized and bitter power clash with the current Minister of Justice, Prof. Daniel Friedmann. Prof. Friedman is reported to be so furious that his female Professor friend, Nili Cohen's candidacy to the Supreme Court has been torpedoed by Beinisch, that he is now (2007) on a mission to scale down the supreme Court powers and jurisdiction to the bare essentials. Prof. Friedman was appointed Minister of Justice in 2007 by Prime Minister Ehud Olmert, (himself under several criminal corruption probes), following the resignation of Haim Ramon, the former Minister, now convicted on sexual harassment charges. The fact that the Minister of Justice is being indicted, tried and convicted of sexual harassment charges is yet another factor that does not reflect well on the integrity of the legal system in Israel, and is a cause for a general uneasy feeling among lawyers in Israel.
  • Climate of Legal Uncertainly. The legal system in Israel is criticized for lack of any ability to predict the outcome of a case, or to provide clients at initial consultation a reasonable and prudent analysis of the chances of success. This is chiefly attributable to the legacy of Aharon Barak's contribution during his tenure at the Supreme Court. Scholars and practitioners attribute Mr. Barak is the introduction of the doctrines of "reasonableness" and "balanceability" to almost any aspect of the law. Under the Barak legacy, Judges are now required to balance every cause of action or defense that comes before them according to the balance of bona fides in a case. Consequently, legal practitioners complain that Israeli law has been stripped of all certainties and nothing is absolute anymore. Any given statute can no longer be read verbatim, because at trial, a Judge may balance the equitities directly in opposition to what the law says. This makes an attorney's job in Israel one of the harder than ever, despite the extensive codification of Common Law. Notably, Mr. Barak is responsible for abolishing the requirement that a litigant prove "standing" in a case, and thus the doors of the Supreme Court opened to anybody to Petition against governmental actions.
  • Advocacy in Israel. Ordinarily lawyers are expected to win cases with persuasive and eloquent argumentation at Court. However, due to Courts' overburdened calendars, much of the legal work is nowadays an exchange of paperwork. It is criticized that the old art of advocacy in Israel has been reduced to the ability to manufacture mountains of paperwork, and thus the chances of success in a case depend on fight back by creating even taller mountains of documents.
  • Attorney Mistakes and Malpractice. Courts in Israel are rather strict in the face of attorney mistakes. Strict adherence to formal rules of civil procedure is absolutely required. Israeli Judges are not forgiving when it comes to minor attorney procedural mistakes. Even the slightest procedural mistake, such as incorrect title of a motion, or an incorrect reliance on a subsection of a statute, can unleash sarcastic criticism from a Judge, and penalized with costs assessed against the client. There is criticism that Judges who do so, tend to forget that the client, a live human being is about to suffer tremendously, financially and otherwise from his attorney=s malfeasance. Many times such costs are exorbitant and disproportionate to the monetary value of the case. Lawyers in Israel are more than willing, and even eager to sue one another for malpractice for even the most insignificant legal mistakes, contrary to most Common Law jurisdictions, where it is hard to find attorneys willing to sue their colleagues. There is no "Statement of Client Rights" which lawyers must adhere to, and therefore many clients end up signing retainers with vague language that eventually enriches the lawyer, and leaves the client very little of the proceeds.
  • Financial Rewards and Verdicts at Court. In general verdicts in favor of plaintiffs are rather low, and minuscule by American standards. For example, a typical libel suit may normally result in a $12,500 verdict. Wrongful deaths recoveries are limited to the proven financial earning ability of the deceased, that must be meticulously documented. Recoveries in insurance claims are also tied in to formulas that cap maximum value of life, and require extensive pretrial practice. However, an unsuccessful application to Court may result in costs against the losing client. Such costs are tied in to the generally hourly billable rates, and are liberally handed out.
  • The Role of the Israel Bar Association upon the Legal practice. The Israel Bar Association does not play a major role in the legal practice. Other than its licensing, accreditation and disciplinary powers, its other activities are voluntary, and score little participation. Most lawyers do not see its relevance in their daily practice and shun away from participation in its events, and from the Bar elections. The Central Committee is mired with hostilities, with Central Committee members regularly suing each other. The tenure of Dr. Shlomo Cohen as Chairman of the Israel Bar has generated much criticism. Cohen launched a campaign to invade the reserve funds of the Tel Aviv District. Other litigation started concerning endorsements of malpractice insurance policies, and another litigation was commenced against an offspring voluntary organization, the International Jewish Lawyers' Association, following some violence at a conference. Complaints have been launched to the Bar's Ombudsman about wasteful job handouts, exploitation of Bar resources as amicus curiae in private litigation, irrelevant publishing house, overseas trips and over politicization of the Israel Bar.

[edit] Jurisdiction of International Court of Justice Rejected

In December 1985, Israel informed the UN Secretariat that it would no longer accept compulsory International Court of Justice jurisdiction.

[edit] References

  1. ^ New District Court Opens: Central Region. Retrieved on 2007-08-21.
  2. ^ New District Court Opens: Central Region. Retrieved on 2007-08-21.
  3. ^ Goldenburg, Suzanne.Settler fined for clubbing Arab boy to death

[edit] Links