PM Netanyahu’s
prosecution and Net-HaMishpat – the Israeli courts’ case
management system
Joseph Zernik, PhD
Human Rights Alert NGO
Israel
Abstract
Instant case study
is based on ongoing prosecution of Israeli Prime Minister Netanyahu
for bribery, fraud and breach of trust. The case has generated
unprecedented circumstances, which have been described as a
constitutional crisis, social disintegration, and a trial of the
justice system itself. The court case has also provided unprecedented
documentation of lack of validity and integrity in design and
operation of Net-HaMishpat – the court’s case management system.
Vast majority of the decisions in the case were kept inaccessible to
the public, moreover, the trial court judges denied a request to
inspect and to copy such decisions, reasoning the decisions were
“post-it” decisions (similar to Outlook “sticky notes”),
which were of “technical” but not “substantive” nature. In
the first appeal, judgment of the Supreme Court ruled that the trial
court must allow the decisions to be inspected. It was hailed as an
“historic event in the our justice system”. Permanent changes in
Net-HaMishpat system have followed the judgment in the first appeal.
The integrity of such recent changes in the system are critically
reviewed. The manner in which the trial court purported to execute
the Supreme Court judgment is reviewed as well. It would be deemed
by a reasonable person a “fabrication” – invalid service of an
invalid court record. Moreover, the trial court denied access to
inspect the entries of such purported court record and its purported
service in the Net-HaMishpat system. A second appeal is now pending
before the Supreme Court, asking: Is a person, who receives a dubious
service of a dubious record from the court, permitted to ascertain
the authenticity, validity and authority of such record by inspecting
the corresponding data entries in the court’s case management
system? Invalidity of IT systems in the Israeli courts has been
repeatedly reported over the past decade. The implementation of such
systems was claimed to be an enabler of serious deterioration in
integrity of the justice system. Case management systems of the
courts present a unique example of “Code is Law”, given their
utmost significance in the safeguard of human rights and democratic
institutions. Human Rights activists and IT experts should assume a
voluntary duty to monitor such systems.
Introduction
In January 2020, prime minister Netanyahu was indicted on bribery,
fraud and breach of trust in the Jerusalem District Court [i,ii].
The indictment generated unprecedented constitutional, political and
social crisis [iii].
In the aftermath, Netanyahu and his supporters have engaged in
incitement against law and justice agencies and against his
opponents, claiming that the indictment and prosecution amount to
“framing” and unlawful attempt to topple a democratically elected
prime minister [iv,v].
On the other hand, protesters have taken to the streets for months,
demanding Netanyahu’s immediate resignation and further
investigations of alleged corruption affairs [vi].
Confidence in conduct of the trial court is limited: A renowned media
personality, Amit Segal, openly advocates conduct of a “Kuntz” in
this trial [vii].
And recently retired State Attorney Shai Nitzan, provided the opinion
that the trial might not take place at all [viii].
Netanyahu’s prosecution is only the latest in a series of high
level government corruption scandals in Israel over the past decade,
including serious corruption scandals of law and justice authorities
[ix,x,xi,xii].
The current report examines the role of invalid case management
systems of the courts in undermining the rule of law.
State of Israel v
Netanyahu: Denial of access to inspect court decisions
Routine inspection of the online docket of State of Israel v
Netanyahu et al (67104-01-20) in Net-HaMishpat case
management/public access system in June 2020 revealed that only 16
decisions were accessible in the public docket, while the latest
request/motion numbers were in the 40s. It became obvious that in a
case, which was defined “Open to the Public”, the majority of
court decisions had been excluded from public access. Consequently,
request to inspect all decisions was filed with the Jerusalem
District Court [xiii].
The request was denied in the June 14, 2020 decision by the
three-judge panel, reasoning: “Pertaining to inspection of court
decisions, the rule concerning “Public Hearing” applies…
therefore, requesters and others are permitted to inspect court
decisions, which are periodically published. Yet, one should
distinguish between material decisions, where the duty to publish
applies, and technical decisions, typically rendered as post-it
decisions, where there is no publication duty” [xiv].
Such reasoning had no foundation in the law.
The June 14, 2020 decision was issued in a fully structured decision
format (Figure 1). Key features of such format are: a) Coat of
arms of the State of Israel and name of the Jerusalem District Court
in the letterhead, b) title of the court record - “Decision” - in
bold, underline, following listing of parties, and c) date and
signature boxes, showing “graphic signatures” (see Discussion,
below) at the end of the document.
In contrast, “post-it” decisions (see example in Figure 3,
below) are yellow rectangular objects, which are pasted on top of
another electronic court record (typically – a pleading by a
party), and are similar to “sticky notes” in Microsoft Outlook.
Post-it decisions are noted for their informal format: a) There is no
listing of the parties, and b) there is no “graphic signature”.
Figure
1. State of Israel v Netanyahu et al (67104-01-20) in the
Jerusalem District Court: June 14, 2020 decision by the 3-judge panel
denying the request to inspect decisions.
---
First Supreme
Court appeal
In late June 2020, appeal was filed in the Israeli Supreme Court
under Zernik v State of Israel et al (4421/20), originating in
the Jerusalem District Court’s decision, denying access to
“post-it”, “technical” decisions [xv].
Of note, responding to the appeal, the State Attorney’s office did
not object to the inspection, whereas all Defendants’ counsel filed
responses, opposing the appeal. In August 2020, Supreme Court Justice
Ofer Grosskopf rendered his judgment, mandating that the “post-it”,
“technical” decision be served on the Requester of Inspection
[xvi].
The judgment was hailed in a report by renowned criminal defense
attorney Avigdor Feldman in Haaretz daily as “an historic event in
our justice system” [xvii].
The
Association for Civil Rights in Israel issued a special communique in
this matter [xviii].
Perverted
execution of the Supreme Court Judgment by the District Court
On September 22, 2020, an unusual fax transmission was received by
the Requester of Inspection (Figure 2) [xix].
Figure
2. State of Israel v Netanyahu et al
(67104-01-20) in the Jerusalem District Court: Pages 1 and 5 of a
September 22, 2020, 5-page fax transmission.
---
The 5-page document appeared intended to be perceived by its
recipient as court record and execution of the Supreme Court
judgment. It did not include copies of the original post-it
decisions, but re-typed text of some 25 “post-it” decisions.
However, such document couldn’t be deemed by a reasonable person a
valid court record: In contrast with valid court records, rendered by
the court itself, it failed to be issued on the letterhead, showing
the coast of arms of the State of Israel and the name of the
Jerusalem District Court. Furthermore, it failed to name its
author/filer, the author’s position, signature, and date of filing,
at its end. It likewise failed to show any sign that it had been
filed and entered in State of Israel v Netanyahu et al
(67104-01-20) in the Jerusalem District Court (e.g., “Filed/Entered”
stamp by the Office of the Clerk).
Moreover, the document, which was faxed from some manual fax machine,
was received with no cover letter by the Clerk of the Court, as is
typical in authentic electronic service in other cases of the courts.
There was neither any indication on the document itself, who its
sender was, nor was the sender identified in the fax header line.
Consequently, inquiry was filed with the Clerk of the Court, asking
to clarify, whether such transmission and such document originated in
the Jerusalem District Court, and the nature of such document [xx].
The Clerk of the Court never responded on the inquiry. Instead,
response on behalf of the Clerk of the Court was received from an
Internal Auditor in the Administration of Courts, trying to persuade
the receiver that the “September 22 document” was a valid court
record, which was duly served by the Jerusalem District Court.
Therefore, request “for due process and upholding good faith duty”
was filed in State of Israel v Netanyahu et al in the
Jerusalem District Court, explicitly stating “serious concern that
the September 22, 2020 fax transmission and the document in it were
fake service of a fake court record” [xxi].
In response, Judge Rivca Friedman-Feldman, head of the 3-judge panel
in the Jerusalem District Court, rendered the October 26, 2020
decision, stating: “For such purpose, the Office of the Clerk
toiled, under the guidance of the Administration of Courts and in
coordination with it… and uploaded the document to Net-HaMishpat
system on September 22, 2020… The Office of the Clerk shall
again send Requesters the September 22, 2020 document, attached to
instant decision” [underline and bold in the original –
jz] (Figure 3).
Figure
3. State of Israel v Netanyahu et al
(67104-01-20) in the Jerusalem District Court: October 26, 2020
decision by Judge Rivca Friedman-Feldman on “request for due
process and upholding good faith duty”.
---
Such statement was distinctive in avoiding the use of valid legal
terms. It failed to refer to the document by any formal legal term,
such as “decision”, or “notice”, only the “September 22,
2020 document’. It failed to state that the document was “filed”
and/or “entered” in the court file, instead stating that it was
“uploaded” to Net-HaMishpat system. Likewise, it failed to order
that the document be “served”, instead ordering it to be “sent”.
Following the October 26, 2020 decision the “September 22, 2020
document” was again received, again by manual fax from an
unidentified source.
Denial of access
to inspect entries of the “September 22, 2020 document” and its
service in Net-HaMishpat
Requester of the Inspection was unconvinced either by the letter from
Administration of Courts, or by the Judge Friedman-Feldman October
26, 2020 decision that the “September 22, 2020 document” indeed
was an authentic court record and authentic execution of Supreme
Court Justice Grosskopf judgment.
The “September 22, 2020 document” failed to appear in the
publicly accessible docket in Net-HaMishpat, and likewise, the docket
showing registration of the authentic service by the Court was and is
inaccessible to the public and Requester of Inspection.
Therefore, Notice of Inspection was file in the Jerusalem District
Court, demanding to inspect the entries and registration data in
Net-HaMishpat, corresponding to the “September 22, 2020 document
and its service [xxii].
The Notice of inspection stated that Requester of Inspection was a
party to the ancillary process of request to inspect, and claimed
that as such, he held the right to inspect the respective entries,
pursuant to Regulation 3 of the Regulations of Inspection (see
under Discussion,
below).
In her November 17, 2020 “post-it” decision, Judge
Friedman-Feldman effectively denied access to inspect such data in
Net-HaMishpat (Figure 4). The decision states: “On
its face, request no. 85 was addressed in the November 01, 2020
Notice by the Clerk”. The November 01, 2020 Notice by the Clerk
(Figure 5a) was a new document, purported to replace
the “September 22, 2020 document”, but it failed to address the
Notice of Inspection in any way, and it failed to provide the data in
Net-HaMishpat, pertaining to the “September 22, 2020 document”,
if they existed at all. The November 01, 2020 Notice by the Clerk
opens with the statement: ‘Per your request, and following a
document that was transferred to you on September 22, 2020, content
of the post-it decisions is attached also as a “Notice by the
Clerk”’. It should be again noted that invalid legal terms are
used: “September 22, 2020 document”, and “transferred” but
not “served”.
In contrast with the “September 22, 2020 document”, the entry in
Net-HaMishpat for the November 01, 2020 Notice by the Clerk was and
is accessible to the Requester of Inspection (Figure 5b).
However, the entry for its service is inaccessible.
Figure
4. State of Israel v Netanyahu et al (67104-01-20)
in the Jerusalem District Court: November 17, 2020 “post-it”
decision, pasted on top of the Requester of Inspection’s “request
for rendering a decision in re: notice of inspection (no. 85)”. The
text says: “On its face, request no. 85 was addressed in the
November 01, 2020 Notice by the Clerk”. The lower-left corner bears
the newly introduced note: “***digitally signed***”.
---
a)
b)
Figure 5. State of Israel v Netanyahu et al
(67104-01-20) in the Jerusalem District Court: a) pages 1 and
5 of the November 01, 2020 Notice by the Clerk. The notice is a fully
structured court record, showing the coat of arms of the State of
Israel and the name of the Jerusalem District Court on its
letterhead, and showing the name of of Nurit Ringler-Cohen,
Department Director and her “graphic signature” at its end. b)
Docket entry corresponding to the November 01, 2020 Notice by
the Clerk, under no. 85 – second line from the top.
---
Second Supreme
Court appeal
In late November 2020, a second appeal was filed in the Supreme Court
[xxiii].
The legal question in the second appeal is: Is a party, who receives
dubious service of a dubious record from the court, permitted to
inspect the registration data of such document in Net-HaMishpat
system, in order to distinguish and ascertain, whether it is an
authentic, valid court record, or merely an invalid “draft”, or
“fabrication”?
The second appeal is still pending.
Late 2020 Changes
in Net-HaMishpat system
Shortly after the August 2020 Supreme Court judgment in the first
appeal, the Administration of Courts introduced two significant new
features in Net-HaMishpat (Figures 4, 6).
First – all “post-it” decisions now include a new comment in
their lower-left corner – “***digitally signed***” (see for
example – Figure 4, above).
Second – all “post-it” decisions now purportedly appear in the
public access system docket. However, the “post-it” decisions do
not appear as a true copy of the original. Instead, their text is
copied into a new format, bearing the watermark - “copy of a
decision”, and with the footnote disclaimer (in red) - “***
In
any case, the binding version is the one in the decision, signed by
the judge” (Figure 6).
Figure
6. State of Israel v
Netanyahu et al
(67104-01-20) in the Jerusalem District Court: November 17, 2020
decision by Judge Rivca
Friedman-Feldman (corresponding to the
“post-it” decision,
shown in Figure 4,
above, as it appears in the public access docket.
---
Discussion
The abbreviated sequence of events in State of Israel v Netanyahu,
outlined about, may appear convoluted and incredible. However, it is
not at all unusual.
Pending second appeal
The state of affairs in the second appeal is rather intractable: The
Jerusalem District Court twice faxed to Requester of Inspection the
“September 22, 2020 document” through manual fax machines, but
not through electronic service in Net-HaMishpat (see below). The
document itself appears invalid on its face. A letter by the Internal
Auditor of the Administration of Court as well as the October 26,
2020 decision by Judge Rivca Friedman-Feldman attempted to persuade
the Requester of Inspection that the “September 22, 2020 document”
was an authentic and valid court record and its service was authentic
and valid service by the Court. However, the Jerusalem District Court
denies Requester of Inspection access to inspect the corresponding
data entries in Net-HaMishpat, if they exist at all... Fraud experts
are likely to deem such state of affairs “Shell Game”, or
“Confidence Trick” [xxiv].
Denying the appeal would deny a party’s right to inspect his own
court process – contradicting the written law, Supreme Court
binding ruling, and “a
fundamental principle in any democratic regime” (see below).
On the other hand, mandating the right of Requester of Inspection to
inspect the Net-HaMishpat data entries, pertaining “September 22,
2020 document”, is likely to demonstrate that no such data exist.
Therefore, in may cast the Administration of Courts Internal Auditor
and Judge Friedman-Feldman as erroneous and/or misleading. It may
further undermine public trust in the court process in State of
Israel v Netanyahu – a case of unprecedented constitutional,
political and social significance.
The right to inspect and Net-HaMishpat
Over the past decade, numerous attempts to inspect court decisions in
various court files in various Israeli courts indicate that the
denial of access to inspect court decisions is the rule, not the
exception. The exception in this case was in fact the August 2020,
Supreme Court Justice Ofer Grosskopf judgment, which mandated that
the right to inspect be upheld.
The right to inspect differs in scope in various jurisdiction. In
the US, such right is perhaps the most comprehensive today, including
all court decisions and all pleadings by the parties. The landmark
US Supreme Court judgment in Nixon v Warner Communications
(the Nixon tapes affair) provides that such right originated in the
English common law, and was established inter alia in the 1st
Amendment to the US Constitution – freedom of the press [xxv].
In Israel, the right to inspect is much narrower. It is established
in the Regulation of Inspection (2003). Regulation 2(b)
provides: “Any person is permitted to inspect decisions, which are
not lawfully prohibited for publication”. And Regulation 3
provides: “A party is permitted, following the filing of Notice of
Inspection to inspect the court file, to which he is a party, unless
it is prohibited for his inspection”.
The other main legal reference is the Supreme Court 2009 judgment at
the end of a 12-year long petition – Association for Civil
Rights in Israel v Minister of Justice [xxvi].
The judgment provides
that in both cases – Regulation 2(b) and Regulation 3 – there is
no requirement for filing a request in the court. Therefore,
both the plain language of
the Regulations and the 2009 judgment imply that the judges have no
discretion in such matters, unless the corresponding
court materials are lawfully
sealed.
In addition, Association
for Civil Rights judgment
states the
expectation that once
Net-HaMishpat
system is up and running, most decisions of the courts would be
publicly accessible on an ongoing basis… Obviously,
that is not the case. A 2020
newspaper report claims that in about half
of Net-HaMishpat
court files there
are neither
publicly accessible decisions nor judgments at all [xxvii].
The Association for Civil Rights judgment further declares
that the right to inspect is “a fundamental principle in any
democratic regime… constitutional, supra-statutory...” and “a
central safeguard for competence of the justice system and public
trust in it...”. The judgment cites a long list of similar
declarations in previous Supreme Court decisions over decades.
Such concepts
are not original. The right to inspect court records is indeed
considered a fundamental safeguard
for integrity of the courts. In the Nixon tapes affair, the US
Supreme Court states: “It is clear that the courts of this country
recognize a general right to inspect and copy public records and
documents, including judicial records and documents. In contrast to
the English practice... American decisions generally do not condition
enforcement of this right on a proprietary interest in the document
or upon a need for it as evidence in a lawsuit. The interest
necessary to support the issuance of a writ compelling access has
been found, for example, in the citizen's desire to keep a watchful
eye on the workings of public agencies... and in a newspaper
publisher's intention to publish information concerning the operation
of government...” [xxviii]
Obviously, “watchful
eye” on “workings
of public
agencies” and “operation of government” includes
first and foremost
the workings
and operation
of the courts themselves.
The
courts’ duty
to maintain identifiable,
authentic court records
The
significance of authentication and due service was already
established and elaborated in Jewish Halacha over 2000 year ago. The
first Mishnah chapters in Gittin Tractate, as
well as
their elaboration in the Talmud are entirely dedicated to questions
pertaining to authentication and due
service
of divorce documents [xxix].
The
significance of authentication and due service has
been recognized
for centuries in the Western World as a fundamental principle in the
conduct of competent courts. Such principle was established as a
Constitutional norm almost 250 years ago in Article IV, Section 1 of
the Constitution of the United States
[xxx].
The
identification
of the “source”, or the “authority” has also been
a central concept
in
the
discourse of
scholars of jurisprudence, relative
to validity and effect of the justice system.
Such
concepts are
particularly evident in the thinking of the Positivist school, e.g.,
John Austin, Hans Kelsen and HLA Hart [xxxi].
Such concepts
are central to
the thinking of the school of Procedural-Natural Law, e.g.,
Lon L Fuller [xxxii].
The thinking of such scholars holds center stage in the
identification and recognition of a “Constitutional Assembly” and
a “Constitution” by retired Supreme Court Presiding Justice Meir
Shamgar and Supreme Court Presiding Justice Aharon Barak in Bank
HaMizrahi
judgment – which is often considered the declaration of the
“Constitutional Revolution” in the State of Israel [xxxiii].
Issuing
legal and/or judicial records, whose source
and authority
are vague and ambiguous, fundamentally undermines the competence,
validity and integrity
of the justice system.
In
practice, the
duty to maintain identifiable,
authentic
court records is
also established in the Hague
Apostille Convention (1961,
1965), to which Israel is a party
[xxxiv].
Of note, the Human Rights Alert NGO submission to the UN Human Rights
Council for the 2018 Universal Periodic Review documented the
“fabrication”
of Apostille documents by the Israeli courts.
Net-HaMishpat:
Post-it decisions
The
feature of “post-it” decisions has been repeatedly
singled out for criticism: First - “post-it” decision are
universally excluded from the public docket, and second – there is
no detectable signature on them [xxxv].
The new features in Net-HaMishpat, implemented following the August
2020 Supreme Court judgment fail to fix such defects, moreover, they
generate new concerns:
a) The new format of the “post-it” decisions, as they appear in
the internal docket (accessible to the court and the parties), shown
in Figure 4, above, includes the lower-left corner note:
“***digitally signed***”. However, Israeli law does not
recognize “digital signature” as a valid form or signature, only
“electronic signature” pursuant to the Electronic Signature
Act (2001). Therefore, the note “***digitally signed***”
makes no sense at all, and only increases the ambiguity.
b) The new format of the “post-it” decisions, as they appear in
the external docket (accessible to the public at large) bears the
watermark “copy of a decision” (but not “true copy of the
original”) and the red footnote disclaimer “***
In any case, the binding version is the one in the decision, signed
by the judge”. Combined, such features render the
records explicitly neither authentic court records, nor authenticated
copies of court records. Therefore, their inclusion in the case
management system of the courts only contaminates the database.
c) There is no valid legislation or promulgation relative to the new
practices, and the announcement by the Administration of Courts was
vague relative to the question whether all
post-it decisions, which are not lawfully prohibited for publication
would be included in the public dockets. Moreover it remains unclear
whether judges are permitted to redact or alter the content of the
post-it decisions, prior to publication, without any indication on
the face of the published document.
Net-HaMishpat: Fully structured protocols, decisions and judgments
Fully structured decision format is demonstrated in Figures 1 and
3, above. Such records purportedly show signatures of the judges,
who rendered the decisions. However, the 2012 Ombudsman of the
Judiciary decision in the Judge Varda Alshech “fabricated
protocols” affair, explicitly states that such “signatures” are
“graphic signatures” - i.e., cut and paste signatures, placed by
the secretarial staff, lacking any validity at all [xxxvi].
The Ombudsman’s decision further states that all decision and
judgment records in Net-HaMishpat are electronic records, and
therefore, they are valid court records only if electronically signed
by the judges. Decisions and judgments that are not electronically
signed are merely invalid “drafts” (Figure 7a).
The Ombudsman’s decision further states that there is no way to
distinguish in printouts and various electronic renditions in
Net-HaMishpat system between unsigned “drafts” and valid court
records…
Net-HaMishpat: Dockets
The Judge Varda Alshech “fabricated protocols” affair also
demonstrates that invalid, unsigned,
“drafts”, or
“fabricated” records, including protocols, decisions and
judgments can be entered in Net-HaMishpat dockets (Figure 7b).
The September 12, 2011 Judge Varda Alshech “fabricated protocols”,
which included decisions and a judgment still appear in the docket to
this date.
Net-HaMishpat: Service
The Ombudsman’s decision further determines that valid service in
Net-HaMishpat system is only electronic service, using the inherent
“Service Application”. At the same time, the Ombudsman’s
decision documents that Net-HaMishpat system makes it possible to
print out “drafts” and mail them or fax them – amounting to
invalid service of invalid documents.
In view of the above discussion, it is patently clear that the
“September 22, 2020 document” and its service couldn’t be
deemed authentic service of an authentic court record.
