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.
