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11 Sivan 5759 - May 26, 1999 | Mordecai Plaut, director Published Weekly








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Contempt of Court Indictment Against Attorney Dror Choter- Yishai Canceled

by Yated Ne'eman Staff

Justice Avi Haber of the Haifa' Magistrates Court recently canceled a repeat indictment filed against the head of the Israel Bar Association, attorney Dror Choter-Yishai. Choter- Yishai was accused by the Attorney General of contempt of court.

The affair began in the Magistrate's Court of Tel Aviv where Choter-Yishai was accused of various tax misdemeanors. The presiding judge was Ziva Hadasi-Herman. Choter-Yishai denied the charges.

Choter-Yishai had voiced strong criticism of the Israeli judicial system in his capacity as head of the Israel Bar Association. He enjoys the support of most of the members of the Israeli Bar, who elected him several times by wide margins. He has complained about the activism of the current High Court, saying that it neglects the more mundane aspects of a well-functioning judiciary, postponing decisions for much too long. He also criticized the external teaching and textbook-writing endeavors of the High Court judges as taking up too much of their time and giving the appearance of a conflict of interest in certain situations.

The tax charges brought against him stemmed from a case in which he represented his father, who was the principal in the affair. The case was brought just around the time that Choter- Yishai (who is not religious) published scathing criticism of the High Court in Yated Ne'eman in November, 1996, and referred to actions performed six years previously. No charges were brought against Choter-Yishai's father and his father's partner who were the recipients of the money in question, just against the head of the Bar Association.

In February '98, following the judge's finding him guilty of several of the charges, Choter-Yishai expressed himself in ways that the prosecution claimed were in contempt of court. Choter-Yishai claimed that the affair, of which he was later cleared, showed that there was an insidious "symbiosis between the court and the prosecution." He also claimed that, "most of Israel's judges are incapable of making such an accusation and certainly not of using such maneuvers and contrivances in order to do so." He said that he had listened to the "reading of an absurd verdict on the part of the court" for more than an hour-and-a-half.

Choter-Yishai claimed that the verdict issued against him constituted "a black stain on a judicial system which functions in such a manner." He also said that it had no relationship to the facts and that its purpose was to implicate him at all costs.

At any event, the appeals court overturned his conviction. Though the judges studiously avoided any criticism of the lower court judge, from the substance of their opinion it was evident that they held that there was no basis for the original case. The acquittal was unequivocal and complete.

As a result of the remarks made by Choter-Yishai on the occasion of his original conviction, the (criminal) Prosecutor of the Tel Aviv region, Justice Miriam Rosenthal and the first senior deputy of the Prosecution of the Tel Aviv region, attorney Nava Schiller, accused Choter-Yishai of contempt of court.

The indictment was filed in the court and ended in a compromise agreement in which Choter-Yishai apologized for his remarks.

At that time, Choter-Yishai said that the occasion at which the indictment against him was expunged that the status of the judges and the judicial system are extremely important to him as a lawyer and as the head of the Bar Association. He then added that he is convinced that "the independence of the judicial system which merits the trust of the public, must be defended." He added that his remarks about the judge were not made with the intention of harming the judicial system nor to disgrace the judge. He was merely expressing sorrow over the expressions which appeared in the indictment, for which he apologized.

Upon the Court's recommendation, the Prosecution agreed to erase the indictment before its reading.

The indictment was once again presented to the court by the Prosecution after a closed meeting of the Central Committee of the Bar Association, at which they discussed Ziva Hadasi- Herman's request that the Association approve her application for two lawyers-in-training. In response, Choter-Yishai said: "In my opinion, that judge isn't worthy of training even one lawyer, and actually doesn't deserve a lawyer's accreditation herself. Therefore, I am not participating in the voting on this topic. That lady has bothered the Bar Association enough."

In the wake of these remarks, the Attorney General decided to renew the indictment against Choter-Yishai in the contempt of court affair, on the grounds that Choter-Yishai had breached the agreement made with him.

Attorney Adam Fish, representing Choter-Yishai, raised a series of preliminary claims before the accused responded to the renewed indictment. He claimed that the renewal of the indictment is a breach of the agreement. He also said that in light of previous judicial decisions as well as laws regarding freedom of expression, a renewed indictment of contempt of court should not be filed against his client.

The Prosecution, on the other hand, claimed that these preliminary claims should not be accepted, and that the renewal of the indictment is based on the breach of the agreement. Choter-Yishai's lawyer claimed that in the agreement made between his client and the Magistrate's Court, no condition limiting his right to criticize the judicial system was stipulated, since, "this right is one of the mantles of enlightened democratic rule and one of the foundation stones of the communal position he occupies [as head of the Israel Bar Association], and is protected by the basic right of freedom of expression."

Justice Avi Haber deliberated upon the preliminary claims and decided that the indictment should be canceled. The judge determined that Choter-Yishai's declaration in the court, in which he expressed sorrow over what he had said and apologized, constitute sufficient evidence to determine that the accused fulfilled his part of the agreement. The judge noted that the agreement made must be regarded as being fulfilled and therefore the State has no right to extricate itself from the arrangement.

The judge also determined that the Prosecution has the right to file an indictment for misdeeds which the accused commits a second time, but that it is has no right to file a renewed indictment in this affair.

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