aharon barak 88 298.
(photo credit: Ariel Jerozolimski [file])
In an unusual decision, Supreme Court President Aharon Barak accepted the request for a new trial of a man convicted of violating the Anti-terror Law. The court decided to retry the defendent because the court's interpretation of the law changed after his initial trial such that he may have been found innocent had he been tried after the change occurred.
The ruling involved the case of David Axelrod, who told a radio interviewer the day after Prime Minister Yitzhak Rabin's assassination that Rabin was a "traitor" and an "enemy of the people" and that he deserved to be killed.
Axelrod was arrested for his statements and tried in Tel Aviv Magistrate's Court on charges of violating the incitement clause of the Anti-terror Law for having praised Rabin's assassination. The court acquitted Axelrod, but the state appealed the decision to Tel Aviv District Court which convicted him, gave him a three-month suspended sentence and fined him NIS 3,000. On May 14, 1999, the Supreme Court rejected Axelrod's request for permission to appeal the district court ruling. This officially put an end to the judicial procedures in his case.
Eighteen months later, the Supreme Court gave a new interpretation to the provision in the law which served as the basis for Axelrod's conviction. In the case of the State versus Jabarin, the court ruled that an Israeli Arab commentator could not be convicted of incitement according to the Anti-Terror Law because the law applied only in cases where the suspect supported or encouraged the actions of a terrorist movement.
As a result of this landmark decision, the state was forced to drop charges against four other suspects who had been charged with incitement in accordance with the Anti-terror Law.
On June 26, 2001, Axelrod asked for a new trial on the grounds that the court had changed its interpretation of the law in such a way that he, too, would have been acquitted had it applied at the time of his trial. He cited two provisions of the Court's Law which grant the Supreme Court president the right to order a new trial in case new evidence is found which might, had it been known during the trial, have shifted the balance in the defendant's favor, or in cases where the outcome constituted a distortion of the law.
It is very rare for the Supreme Court to grant a new trial, and it has frequently been criticized in the past for refusing to do so. The court's traditional refusal was in accordance with the principle that after all of the judicial procedures provided by law have been exhausted, the outcome should be final and conclusive. However, Barak's ruling theoretically paves the way for more retrials in cases to which the same principle that applied in the Axelrod case also applies.
Barak gave four reasons for deciding that Axelrod had suffered from a distortion of the law. These included the argument that once the court had changed its interpretation of the incitement provision in the Anti-terror Law, the "social-moral basis for the conviction was underminedâ€¦ and no longer existed."
Barak added several riders to his decision to prevent judges from too liberal an application of the Axelrod ruling. For example, only in cases where the Supreme Court has very clearly changed its interpretation of the law may a new trial be granted to a convicted defendant. Another example, the change in the interpretation of the law must have a direct impact on the criminal responsibility of the person requesting the new trial.
Barak gave the Attorney-General two weeks to decide whether he insisted on holding a new trial for Axelrod or whether he was prepared to have the court announce that he was innocent.