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Some New Emphases in Extradition Case Law

Published online by Cambridge University Press:  12 February 2016

S.Z. Feller
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Extract

In Azen v. State of Israel, the Supreme Court heard the appeal of a person who had been declared extraditable to France for offences of stealing by an agent and fraud, committed, according to the request for extradition, in France. One of the pleas raised against the decision of the District Court, in which Azen was declared extraditable, was that the specialty limitation was not guaranteed in the Extradition Treaty between Israel and France, as required by sec. 17 (a) of the Israeli Extradition Law, 1954. This section states unequivocally that —

A wanted person shall not be extradited unless it has been ensured, by an agreement with the requesting State, that he will not be detained, tried or punished in that State for another offence committed prior to his extradition;

whereas in art. 17 of the said Treaty, specialty is guaranteed in the following words:

L'individu qui aura été délivré ne pourra ni être poursuivi ou jugé en sa présence ni être, détenu …

i.e. under the Treaty, the specialty limitation is restricted, from the procedural point of view, to those processes involving physical, personal enforcement against the subject of extradition—he will not be “summoned” for interrogation, nor judged “in his presence”, nor “detained”; the Extradition Law, however, contains no such restriction, with the exception of detention which, by its very nature, requires physical enforcement.

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Articles
Information
Israel Law Review , Volume 16 , Issue 2 , April 1981 , pp. 204 - 224
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981

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References

1 (1979) (II) 33 P.D. 169; (hereinafter: Azen).

2 10 K.A. no. 308, 379.

3 (1954) 8 L.S.I. 144.

4 Azen, supra n. 1, at 170, near C-E.

5 Feller, S.Z., The Law of Extradition (Jerusalem, 1980) 315.Google Scholar

6 Id. at 315–6.

7 (1979) (III) 33 P.D. 113; (hereinafter: Hanauer).

8 Treaty Concerning the Reciprocal Extradition of Criminals between the Government of the State of Israel and the Government of the United Kingdom of Great Britain and Northern Ireland, 11 K.A. no. 360, 65.

9 Hanauer, supra n. 7, at 116, near C-F.

10 Feller, supra n. 5, at 21–3.

11 Hanauer, supra n. 7, at 116, near F-G.

12 See Ross v. State of Israel (1970) (II) 24 P.D. 316; Engel & Friedman v. State of Israel (1980) (III) 34 P.D. 98; Feller, supra n. 5, at 307–10; and see the references there.

13 Engel & Friedman, supra n. 12.

14 Extradition Agreement Between the Government of the State of Israel and the Government of Canada, 21 K.A. no. 721, 367.

15 Penal Law, 1977 (L.S.I., Special Volume).

16 Engel & Friedman, supra n. 12, at 104, near B-C.

17 Id. at 104, near F-G.

18 See Feller, supra n. 5, at 219–25.

19 For a detailed discussion of the use of this method, see id. at 174–9.

20 Ross, supra n. 12, at 365, 371.

21 Id. at 373.

22 See references in n. 12 above.

23 See Margorin v. State of Israel (1976) (II) 30 P.D. 701, at 702–3; Kamiar v. State of Israel (1968) (II) 22 P.D. 85; Pesachowitz v. State of Israel (1977) (II) 31 P.D. at 460–1; Hanauer, supra n. 7, at 113, 116–7. And see Feller, supra n. 5, at 354–5.

24 Id. at 355–7.

25 1980) (III) 34 P.D. 500 (hereinafter: Ornstein).

26 The section states as follows:

“Carrying out sentence of imprisonment imposed abroad.

10A (a) Where a person has been sentenced to imprisonment for an offence referred to in sec. 7A, and has not served the whole of his sentence, the Minister of Justice may, at the request of the State in which the sentence was imposed, direct that the sentence or such part thereof as has not been served abroad, shall be served in Israel by a judgment which was no longer appealable: Provided that a penalty heavier than that which could have been imposed for the offence under Israeli law shall not be imposed.

(b) The Minister of Justice shall not direct that the sentence be served unless a court in Israel competent to declare a person extraditable has found that that person would be extraditable but for his Israeli nationality, or, if he is a resident of Israel, but not an Israeli national, that he is extraditable; and for this purpose, it shall be immaterial whether or not an agreement providing for reciprocity in the matter exists between Israel and the requesting State.

(c) Secs. 3 to 7, 12, 13 and 22 of the Extradition Law, 1954, shall apply, mutatis mutandis, to legal proceedings under subsection (b).

(d) For the purpose of this section:

(1) “Imprisonment” includes confinement in any form and under any condition;

(2) A person who has been sentenced to death abroad shall be deemed to have been sentenced to imprisonment for life.”

27 Ornstein, supra n. 25, at 503, near A.

28 Id., near E-F.

29 Id., at 504, near E-F.

30 Id., at 503, near F-G.

31 See Feller, supra n. 5, at 458–66.

32 See also State of Israel v. Pollock (1970) (II) 24 P.D. 17, 19.

33 Ornstein, supra n. 25, at 503–4.

34 Id., at 501–2.

35 Id., at 502.

36 Ibid., near A.

37 Ibid., near D.

38 Ibid.

39 32 L.S.I. 63.

40 Ornstein, supra n. 25, at 502, near F-G.

41 As yet unpublished.

42 The section reads as follows: “1A. An Israeli national shall not be extradited save for an offence committed before he became an Israeli national.” (32 L.S.I. 63).

43 See Feller, supra n. 5, at 119 ff.

44 Pesachowitz v. Stale of Israel (1977) (II) 31 P.D. 449.

45 For details, see Feller, supra n. 5, at 123 ff.; and see the decision in Pesachowitz, supra n. 44.