Crimes & New Immigrants: The Due Process in Israel

This is one of the hardest articles I’ve written so far and I understand how upsetting it will be for many of you when reading it, but the reality is what it is and especially for new immigrants who have high expectations before they encounter the criminal justice system – it can be particularly devastating. In order to help you understand how problematic involvement with the criminal justice system can be, I wrote this short article using simple words and refrained from using political comments.

Democracy, the legal system and the due process in Israel:

Israel is a young democracy, a “defensive democracy” or whatever you wish to call it but we are a not a “full democracy”. We are far behind the US, still in the learning process of democracy, still trying to widen the openness of our legal system but we are doing it very slow, too little and too late for so many. Unfortunately in Israel one is guilty until he can prove the contrary. In order to prove your innocence you may need much more than a good lawyer – you may need a small miracle. Don’t mistake that for a second; if the state presents an indictment against you, your chances for a not guilty verdict are very small – less than 2%. The statistics are not perfect but still the numbers are astonishingly worrying. The premise is that if the prosecution has decided to go forward and go for a trial you are probably guilty! There is no pretrial, no jury and the chances of having a procedure cancelled by the Attorney General are (“Aioetz Hamishpati Lamemshala” ) very narrow. Most judges dealing with criminal cases came from the Prosecution Office and only a few from the Public Defender`s Office or from private practice, therefore, the “legal approach or legal point of view” of these judges lean toward the prosecution. Court rooms are packed, petty criminals and those who committed serious crimes are all brought together to the same court room at the same time and they are all viewed in the same light by the prosecutors and judges. The court room is not a place where you can have your “day in court” or speak to the judge because everyone is overburdened with more cases than they can handle.

The worst areas of crimes:

The most difficult area in criminal law today is the various “sex offenses”. When I say difficult I mean difficult for the defense and the defendant but not the prosecution who has the upper hand in the case from the very beginning. The law asks very little from the prosecution in order to prove its case, while the defendant is considered guilty and must prove his case beyond the shadow of a doubt. A suspect of a sex offense will most probably be held in jail for one or two days at minimum, but possibly weeks and longer periods until the trial actually ends. The second difficult area is: Domestic Violence especially if you are a man and even worse if a child complains against you. If the wife wants the husband out of the house she can reach her goal with a phone call and a very short visit to the police station. This is a sad fact and only now it may change for the better because more and more husbands are suing their wives for damages caused by false accusations. The problem is the general assumption by police is that it is better to send an innocent guy to jail, thus removing any chances of anything bad happening because if something bad happens, the media will be all over it and the police will be blamed.

The philosophical approach:

Many innocent people are serving time in the Israeli’s prison and unfortunately the legal criminal approach in Israel is still very primitive. It’s better to have an innocent citizen in prison rather than a guilty one walking free in the streets – just the opposite of the well-known universal approach.

Who is the prosecution looking for? What kind of crimes?

This is a very simple answer: They are looking for any case they can win in court. It doesn’t matter if you called your wife names, slapped a child - your own child, told a civil servant he is stupid, broke your neighbor’s glass of wine in the heat of the moment, stole an apple, injured someone in a car accident, robbed a bank, etc. The case will cost you thousands of dollars in lawyer’s fees, could drag on for years, and negatively affect your entire future because you now have a criminal record.

The Criminal Record:

If you have a criminal record in Israel, be prepared to pay the “second price” for your “small or big crime”. Besides the price you have already paid after the legal procedures ended you may find yourself handling a new struggle: having a criminal record could cause you to lose your job, your license (in some professions), to be denied a visa to some countries, etc. The authorities will not erase these records for years, sometimes never and you won’t have any chance in an appeal. For certain crimes one can ask for a pardon from the President of Israel, but historically these are awarded only in a few cases.

The Hope and the Secret:

So what’s the secret? Do I have hope? This is one of the most popular questions from people looking for advice in a criminal procedure. The answer is: Yes there is always hope and a good chance you can get out of it, but the more you wait and the farther the procedures go, the harder it will be. The secret is in the preparation and the steps you take before you have been indicted. You should contact a good lawyer, an expert in this kind of law and consult as soon as you have a reason to believe a crime has been committed by you. The “questioning stage”, taking place in a police station by a special detective (“Choker”) is indeed the most crucial stage of any criminal case and again do not forget that you are now in Israel dealing with the Israeli system. You will not be allowed to be represented by a lawyer during the interrogation procedures. No lawyer will be present and even a translator could be a problem in spite of the fact that the law allows you to have one if you have not mastered Hebrew. You should refuse to be questioned in a language you do not completely have command of.

A word of Wisdom – The must not do list:

Nobody is perfect, we all make mistakes in life, but if you ever find yourself indicted remember this short list: Don’t make it worse by denying the fact you are in trouble. It is much harder for a new immigrant to go through a criminal proceeding than for a native, and it is frustrating to learn the hard way that the “due process” has not fully arrived in Israel. Don’t despair or go into depression because you will have to be sober and focused during the entire process. Control is the key. Don’t make it worse by involving everyone else such as the Ministry of Justice, the President of Israel, the press etc. This is a phenomenon we encounter when new immigrants feel they are being “misunderstood”. Don’t involve family, “friends”, or neighbors, and be always careful when making “public statements”. Don’t look for revenge. Let it go even if you are certain of your innocence. Focus on the case and not on “that person” even if he is the cause for all the pain you are going through. Don’t skimp (if you can) on a good lawyer, and never hide anything from him/her. Remember you can always start over and be happy again.

Sincerely,
 

Tzvi Szajnbrum, Attorney at Law