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.
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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***”.
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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.
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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.
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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.
a)
b)
c)
Figure 7. Bank HaPoalim v State Receiver (1623-00) in the Tel-Aviv District Court: a) September 12, 2011 Judge Varda Alshech decision, which was one of the records at the center of the “fabricated protocols” affair. The 2012 Ombudsman decision determines that the Judge’s signature on the record was merely a “graphic signature”, and the document had never been electronically signed, and was merely an invalid “draft”. The lower part of the document shows certification “True Copy of the Original” and the seal of the court. The 2012 Ombudsman decision determines that such certification was rendered with no authority by an incompetent secretarial assistant. b) December 14, 2020 screen print of the docket still shows the entries for the “fabricated” September 12, 2011 Judge Varda Alshech “fabricated protocols”, which included decisions and a judgment still appear in the docket to this date. c) December 14, 2020 screen print of docket details still shows that the September 12, 2011 Judge Varda Alshech “fabricated protocols” were “signed” by Judge Alshech on September 12, 2011. The Ombudsman decision determined that the “fabricated protocols” had never been signed, and were merely invalid “drafts”.
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Net-HaMishpat: Certification
The Israeli courts were originally established in 1922 under the British Mandate for Palestine and fashioned after the English common law courts. Regulation 4 of the British Rules of Court (1936) promulgated the duty of the Chief Clerk for maintenance of “registers and records” of the court, and provided great detail pertaining to the manner in which such registers and records must be maintained. The mandatory regulations were abolished with the promulgation of the Israeli Regulations of the Office of the Clerk (2004) in anticipation of the implementation of Net-HaMishpat. The Israeli Regulations originally provided no details at all relative to the maintenance of authentic court records. A 2005 amendment added Regulation 6a, which only provides “the Chief Clerks of the courts are authorized to certify that a copy of a court record is a true copy of the original in the court file”.
However, today, the Chief Clerks fail to certify any records. Instead, employees of unidentified or no authority typically certify records. Moreover, in recent years, the Administration of Court introduced a new feature in Net-HaMishpat – machine-generated certification, which refers to no person’s authority at all. Such machine-generated certification can seen as the round, purple stamps in Figures 1, 3, 5 and 6, above. The invalidity of such machine-generated certification is demonstrated in Figure 6: The record itself is clearly not an authentic court record, it bears the red, footnote disclaimer to such effect. And yet, a “True Copy of the Original” machine-generated certification is applied to it.
The absurdity of such machine-generated certification is further demonstrated in the purported certification of a page, saying only “scanned in error”, which is a fabrication in itself – it was docketed in Net-HaMishpat as a February 06, 2020 Detainee release warrant (Figure 8a,b). Moreover, the derails in Net-HaMishpat falsely state that such fake warrant was “signed” by Judge Anat Yahav on February 06, 2020 (Figure 8c).
a)
b)
c)
Figure 8. State of Israel v Zernik (11235-02-20) in the Tel-Aviv Magistrate Court: a) February 06, 2020 “fabricated” release order, as entered in Net-HaMishpat. The record only says “scanned in error”, but it bears a machine-generated purported certification (purple round stamp). b) December 14, 2020 screen print of the docket still shows the entry for the “fabricated” February 06, 2020 “fabricated” “Release Warrant”. c) Screen print of docket details still shows that February 06, 2020 “fabricated” “Release Warrant” was “signed” by Judge Anat Yahav on February 06, 2020.
Net-HaMishpat: Electronic signatures
Counsel and parties, who use electronic filing in Net-HaMishpat, are required to obtain electronic signature devices from a state licensed Certifying Authority (currently there are only two – PersonalID and Comsign LTD). All documents, which are electronically filed, must be electronically signed in compliance with the Electronic Signature Act (2001).
The 2012 Ombudsman of the Judiciary decision in the Judge Varda Alshech “fabricated protocols” affair makes similar statements relative to judicial records in Net-HaMishpat: The Ombudsman determines that judicial records in Net-HaMishpat are electronic records, and therefore they are invalid, unless signed by the judge, using an electronic signature pursuant to the Electronic Signature Act (2001) [xxxvii].
However, review of the electronic signature data in Net-HaMishpat indicates that no valid electronic signatures have ever been implemented for judges and clerks (Figure 9). Examining the signature data, using the dedicated software of the Israel Bar Association, shows that all judges signatures in Net-HaMishpat are deemed by the software invalid, and the signer of all such purported signatures, as well as the issuers of all such purported electronic signature devices are one and the same: “Israeli Courts Authority”.
Figure
9.
Electronic
signature Certification tab on a judgment record in Net-HaMishpat:
Certification
data:
The fundamental certification of the certifying authority is invalid…
Issued for: Israeli Courts Authority.
Issued by: Israeli Courts Authority.
Valid: From 01.01.2000 to 01.01.2099
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Freedom of Information Request 269/2019 on the Administration of Courts asked for any documents or legal references for the establishment and conduct of the “Israeli Courts Authority”, as well as documents and references for the administration of electronic signature devices for judges. The Administration of Courts’ reply stated, inter alia, that the “Israeli Courts Authority” was established pursuant to the Basic Law: The Judiciary (in the aftermath of the “Constitutional Revolution”, led by the judiciary, Basic Laws are deemed by the judiciary “constitutional articles”) [xxxviii, xxxix,xl]. However, the Administration of Courts refused to provide any information regarding the administration of electronic signature devices and the implementation of electronic signatures for judges in Net-HaMishpat.
Such response by the Administration of Courts was deemed fictitious, or another “fabrication”. Therefore, petition was filed against Judge Yigal Mersel, Director of Administration of Courts [xli]. The petition is still pending. However, already in the preliminary response, Administration of Courts recanted and stated that there was no government entity named the “Israeli Courts Authority”… Therefore, obviously, there is no lawful Certification Authority and no lawful signer of judicial records of the same name...
The implementation of invalid, fake electronic signatures in Net-HaMishpat makes it possible for judges to alter judicial records at will, with no due process of law and with no notice to parties and no indication in the court file. Additionally, judges and others can add, remove, or replace documents in Net-HaMishpat docket at will with no due process of law, and without recording the date, the authority and the cause of such actions...
Net-HaMishpat: State Ombudsman report
Development and implementation of Net-HaMishpat was a major, costly project, which lasted over almost a decade (2000-2010). Following the January 2010 implementation of Net-HaMishpat in all district and magistrate courts in Israel, the State Ombudsman published a special report – Computerization of the Courts, 60b (2010) [xlii]. The published report notes critical failures in development and implementation of the system:
a) Development contract were awarded with no legal tender;
b) Development contracts were signed with no written specifications;
c) Development was conducted with no “core management by a state employee” (however, the same report notes that following his resignation, Director of the Administration of Court, Judge Boaz Okon, “volunteered” to continue supervising the development until its completion);
d) No independent inspection and validation was conducted by a state employee prior to implementation;
e) Unknown number of persons were issued double “smart cards” (ICC) for access to the system, and
f) In conjunction with development of the system, servers of the courts were transferred from custody of the Clerks of the Courts to the custody of corporations.
Code is Law: Case management system of the courts, human rights and democratic institutions
About 20 years ago Larry Lessig advanced the concept “Code is Law”: In the age of cyberspace, a new type of regulator emerges – code or architecture of online platforms, which is a threat to Liberty [xliii]. Lessig’s concerns primarily pertained to privacy, freedom of speech, access to information, intellectual property rights, and the ability of cyber systems to “displace values from our constitutional tradition”.
The study of case management systems of courts and prisons expands such notions to a more acute level. Both in Israel and in other nations, such systems were and are often developed with inadequate public oversight. However, such systems create a new law, at times contradictory or violating the written, published law, in matters of Liberty itself.
Some incidents of “fabrication” of court records can probably be discovered in any justice system. To wit, in many jurisdictions specific laws appear in the penal codes to address such criminal conduct [xliv]. However, in a competent, lawful justice system, such incidents should reflect sporadic, exceptional failures.
In contrast, design and operation of Net-HaMishpat system, as demonstrated in instant report, enable the routine fabrication of court records with impunity, as a system-wide feature...
Conclusions
The main defect in the Israeli courts’ case management system, Net-HaMishpat, implemented in 2010, is the ability to generate and propagate “fabricated” records with impunity. Such records may be published online in court dockets, or sent to parties in court process. The recipients and the public at large are led to believe that such documents are valid and effectual court records. Such record may also lead to enforcement actions, such as deprivation liberty, property and other rights. However, at the same time, judges consider such records merely invalid “drafts”. The Judge Varda Alshech affair (2011-2013) highlighted such circumstances [xlvxlvi,xlvii,xlviii].
Net-HaMishpat system has generated circumstances under which, the public at large, or even a party to a court process may not be able to distinguish between valid, authentic and effectual court record and invalid “draft”, or “fabrication”. The unique case, reported here, demonstrates how judges work to make it impossible for a party to make such distinction, in apparent violation of the written law, Supreme Court binding decisions, and what they courts themselves declared “a fundamental principle in any democratic regime… constitutional, supra-statutory...”.
Human Rights Alet NGO submissions to the UN Human Rights Council in 2013 and 2018, and the the US State Department (2020) alleged that such circumstances undermine the rule of law and human rights from their foundation [xlix,l,li].
The 2013 UN Human Rights Council [HRC] Staff Report incorporated by reference the Human Rights Alert NGO submission and summarized it - “lack of integrity in the electronic record systems of the Supreme Court, the district court and the detainees courts in Israel”. The 2018 HRC staff report likewise stated - “serious deterioration in integrity of law and justice agencies as a consequence of the implementation of e-government systems. It affirmed that the validity and integrity of any legal and judicial records of Israel should be deemed dubious at best” [lii].
Likewise, case management systems of courts and prisons at times permit data mining, which enables the discovery of systemic human rights violations, related to the publication of invalid or fraudulent legal records by various government agencies [liii,liv,lv,lvi].
Given the utmost significance of case management systems of courts and prisons in the safeguard of human rights and democratic institutions, human rights activists and IT experts should assume a voluntary duty to monitor such systems.
References
i Staff. (2020). Netanyahu indicted in court on corruption charges after dropping immunity bid. BBC.
Retrieved from https://www.bbc.com/news/world-middle-east-51277429
ii Staff. (2020). Benjamin Netanyahu: What are the corruption charges? BBC.
Retrieved from https://www.bbc.com/news/world-middle-east-47409739
iii Koplow, MJ. (2020). Israel’s non-constitutional constitutional crisis. Israel Policy Forum.
Retrieved from https://israelpolicyforum.org/2020/03/26/israels-non-constitutional-constitutional-crisis/
iv Pfeffer, A., Bandel, N. (2020) Netanyahu Attacks Justice System at Opening of His Corruption Trial. Haaretz
v Galili L. (2020). Netanyahu incites violence by casting protesters as clear and present danger. Middle East Eye.
Retrieved from https://www.middleeasteye.net/news/israel-netanyahu-protests-attacked-violence-will-get-worse
vi Alleruzzo, M. (2020) Israelis press ahead with weekly anti-Netanyahu protests. AP
Retrieved from https://apnews.com/article/virus-outbreak-israel-benjamin-netanyahu-jerusalem-bdbcdcd28e3ff0bad5f9030b3ce5a4c2
vii Segal, A (2019, November 21) Twitter
https://twitter.com/amit_segal/status/1197578802190311430?s=20
viii Staff (2020) Shai Nitzan regarding proceeding of Netanyahu’s trial: In this State nothing is a done deal. Haaretz [Hebrew]
ix Corruption in Israel. Jerusalem Post
Retrieved from https://www.jpost.com/tags/corruption-in-israel
x Bachner, M. (2019) Senior legal official arrested, others questioned in judicial corruption probe. Times of Israel
Retrieved from https://www.timesofisrael.com/senior-legal-official-suspected-of-corruption-in-case-rattling-the-judiciary/
xi Hovel, R. (2015) Top Cop in Israel's Anti-corruption Police Unit Gets 8 Years for Bribery. Haaretz
Retrieved from https://www.haaretz.com/.premium-top-cop-in-anti-corruption-unit-gets-8-years-for-bribery-1.5400886
xii Hovel, R. (2018) Former Israeli Anti-fraud Chief Sentenced to Jail Over Corruption Charges. Haaretz
Retrieved from https://www.haaretz.com/israel-news/.premium-former-israeli-anti-fraud-chief-sentenced-to-jail-over-corruption-charges-1.6763862
xiii Zernik, J. (2020) State of Israel v Netanyahu (67104-01-20) in the Jerusalem District Court - Request (No 41) to inspect court file, Human Rights Alert NGO [bilingual: Hebrew & English]
xiv Judges Friedman-Feldman, R., Bar-Am, M., and Shaham, O. (2020) State of Israel v Netanyahu (67104-01-20) in the Jerusalem District Court – Decision, denying Request (No 41) to inspect court file by Joseph Zernik, Human Rights Alert NGO [Hebrew]
xv Zernik, J. (2020) Zernik v State of Israel, Netanyahu et al (4421-20) in the Supreme Court – Commencing record, Human Rights Alert NGO [bilingual: Hebrew & English]
xvi Justice Grosskopf, O. (2020) Zernik v State of Israel, Netanyahu et al (4421-20) in the Supreme Court of Israel – Judgment, Human Rights Alert NGO [Hebrew]
xvii Feldman, A. (2020) Bibi Netanyahu and the yellow post-it notes road. Haaretz
Retrieved from https://www.haaretz.co.il/magazine/.premium.HIGHLIGHT-1.9105764
xviii Yakir, D. (2020) State of Israel v Netanyahu – Justice Grosskopf on the right to inspect. Association for Civil Rights in Israel [Hebrew]
xix Anonymous (2020) State of Israel v Netanyahu (67104-01-20) in the Jerusalem District Court – fax notice by the court to Requester of Inspection, Human Rights Alert NGO [Hebrew]
xx Zernik, J. (2020) State of Israel v Netanyahu (67104-01-20) in the Jerusalem District Court – request for clarifications by the Clerk of the Court [bilingual: Hebrew & English]
xxi Zernik, J. (2020) State of Israel v Netanyahu (67104-01-20) in the Jerusalem District Court - Request (No 82) for due process, Human Rights Alert NGO [bilingual: Hebrew & English]
xxii Zernik, J. (2020) State of Israel v Netanyahu (67104-01-20) in the Jerusalem District Court - Notice (No 85) of inspection, Human Rights Alert NGO [bilingual: Hebrew & English]
xxiii Zernik, J. (2020) Human Rights Alert NGO v State of Israel, Netanyahu et al (8338/20) in the Supreme Court - Appeal, Human Rights Alert NGO
xxiv Confidence trick, Wikipedia
Retrieved from https://en.wikipedia.org/wiki/Confidence_trick
xxv Nixon v. Warner Communications, Inc., 435 U.S. 589, 1978
xxviBeinisch, D. (2009) Association for Civil Rights in Israel v Minister of Justice et al (5917/97)
xxvii Dolev, D. (2020) The person who struggles for transparency of the courts. Walla
Retrieved from https://news.walla.co.il/item/3368198
xxviii Nixon v Warner Communications, Inc., 435 U.S. 589 (1978)
xxix Mishnah Gittin Tractate: Full Hebrew text with English translation, Sefaria project
Retrieved from https://www.sefaria.org.il/Mishnah_Gittin.1?lang=bi
xxx US Constitution, Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
xxxi Raz, J. (2009) The concept of a legal system: An introduction to the theory of legal system. Oxford University Press
xxxii Fuller, L. (1964) The Morality of Law. Yale University Press
xxxiii Shamgar, M (1993) United Bank HaMizrahi LTD v Migdal Cooperative Village (6821/93), see
Retrieved from https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village
xxxiv Apostille Convention. Wikipedia
Retrieved from https://en.wikipedia.org/wiki/Apostille_Convention
xxxv Zernik J. (2015). Fraudulent new IT systems of the Israeli courts: Unannounced regime change? In C. Adams (Ed.) 15th European Conference on Digital Government (pp 331-340). Red Hook, NY: Curran Associates, Inc.
xxxvi Ombudsman of the Judiciary Goldberg, E. (2012) Decision (88/12/Tel-Aviv District) in the Judge Varda Alshech “Fabricated Protocols” affair (unpublished, May 12, 2012).
xxxvii Ombudsman of the Judiciary Goldberg, E. (2012) Decision (88/12/Tel-Aviv District) in the Judge Varda Alshech “Fabricated Protocols” affair (unpublished, May 12, 2012).
xxxviii Justice Barak, A. (1992) A constitutional revolution: Israel’s basic laws, Yale Law School
Retrieved from https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4700&context=fss_papers
xxxix Zernik, J. (2019) Freedom of Information Request (269/2019) on Administration of Courts, re: Israeli Courts Authority and electronic signatures, Human Rights Alert NGO
xl Saban-Safrai, Sh. (2020) Freedom of Information Response (269/2019) by Administration of Courts, re: Israeli Courts Authority and electronic signatures, Human Rights Alert NGO [Hebrew]
xli Zernik, J. (2020) Zernik v Director of the Courts Judge Y Mersel (39537-05-20) in the J-m District Court - Petition
xlii State Ombudsman, (2010) Procedures and actions pertaining to computerization of the courts, Annual Report 60b, State of Israel
Retrieved from https://www.mevaker.gov.il/sites/DigitalLibrary/Pages/Reports/465-37.aspx?AspxAutoDetectCookieSupport=1
xliii Lessig, L (2000) Code is Law, Harvard Magazine
Retrieved from https://harvardmagazine.com/2000/01/code-is-law-html
xliv Texas Penal Code § 32.48. Simulating Legal Process
Retrieved from https://codes.findlaw.com/tx/penal-code/penal-sect-32-48.html
xlv Zarchin, T. (2012) Israeli judge accused of doctoring transcripts steps down as judicial representative. Haaretz.
Retrieved from https://www.haaretz.com/judge-who-doctored-court-protocols-quits-1.5272473
xlvi Zernik, J. (2018) E-courts in Israel: are judges permitted to deceive in imprisonment? In R. Bouzas-Lorenzo and A.C. Ramos (Eds.) 18th European Conference on Digital Government (pp 257-266). Red Hook, NY: Curran Associates, Inc.
xlvii Zernik, J. (2017) E-government in Israel – Transformation into the Post-Truth Era. In J. Vieira Borges and J.C. Dias Rouco (Eds.) 17th European Conference on Digital Government (pp 270-280). Red Hook, NY: Curran Associates, Inc.
xlviii Human Rights Alert NGO (2017). Submission for the Universal Periodic Review, 29th session, United Nations, Human Rights Council
Retrieved from https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=4809&file=EnglishTranslation
xlix Human Rights Alert NGO (2013) Submission and Appendix for the Universal Periodic Review of the State of Israel by the UN Human Rights Council
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G12/180/12/PDF/G1218012.pdf?OpenElement
l Human Rights Alert NGO (2018) Submission and Appendix for the Universal Periodic Review of the State of Israel by the UN Human Rights Council
https://www.scribd.com/document/352527742/
https://drive.google.com/file/d/0B8Aa2xQGbmk5N0RyelB6YTNBems/view?usp=sharing
https://www.scribd.com/document/351709301/
https://drive.google.com/file/d/0B8Aa2xQGbmk5a2ktaEhqdHk0b1U/view?usp=sharing
li Human Rights Alert NGO (2020) Review of Human Rights and Democratic Institutions in the State
of Israel – 2019-2020, submitted for the US State Department annual review
lii Office of the United Nations High Commissioner for
Human Rights (2018) Summary of Stakeholders’ submissions on Israel
Retrieved from https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/332/74/PDF/G1733274.pdf?OpenElement
liiiSingh, I. (2018) Data Mining and Warehousing, Khanna Publishing, p 318
livData mining – human rights, Wikipedia
Retrieved from https://en.wikipedia.org/wiki/Examples_of_data_mining#Human_rights
lv Zernik, Joseph; Data Mining as a Civic Duty – Online Public Prisoners' Registration Systems, International Journal on Social Media: Monitoring, Measurement, Mining, 1: 84–96 (2010)
lvi Zernik, Joseph; Data Mining of Online Judicial Records of the Networked US Federal Courts, International Journal on Social Media: Monitoring, Measurement, Mining, 1:69–83 (2010)
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