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An extended panel of seven High Court justices on Sunday cancelled a 30-year-old procedural rule according to which a suspect on trial could not testify in the separate trial of other defendants suspected of the same crimes until his own trial was over.
The procedural rule is known as the Kinzey rule, after Menahem Kinzey who was convicted in 1975 on charges of receiving stolen property. The Supreme Court overruled the Tel Aviv District Court conviction because it was based on the testimony of Yosef Biton, a suspect in the same case, who was being tried separately on the same charges.
The Kinzey rule has stood ever since. The rationale behind it is that the witness will give false testimony to try to shift the blame from himself to his partners in crime. His appearance in court will be a trial run for the testimony he will give in his own trial.
Last year, in a rare move, the State Attorney's Office petitioned the High Court of Justice against a decision of Beersheba District Court not to allow Yaron Sanker to testify in the trial of Meir Jano, Yisrael Ganon and David Tzafir. At the same time, it also asked the court to allow Sanker to testify in a separate trial in Tel Aviv District Court of Rafi Ohana, Moshe Ohana, Shalom Sheetrit, David Akiva and Gal Buganim.
Sanker was being tried on one of two charges filed against the first group and all five of the charges filed against the second group. During police questioning, Sanker had confessed to all the charges against him and had told the police about the involvement of all the other suspects. Therefore, the prosecution wanted Sanker to testify against the others in their trials.
At the time, the other trials were moving ahead faster than the trial of Sanker, who had meanwhile retracted his confession and was putting up procedural obstacles to slow down his trial, for example, by changing lawyers three times.
With no end in sight for the Sanker trial, the other two trials had bogged down, waiting for his testimony. The suspects in those trials remained in jail because of the threat they constituted to public safety and the court had to keep extending their remands because their trials were stalled. This was a blow to their civil rights, since they were still presumed innocent. Some had received seven remand extensions, other eight, and three of the suspects had been released from jail with restrictions.
All of the justices agreed that the circumstances had changed drastically in the 30 years since the High Court first established the Kinzey rule. First of all, There were more cases, many involving organized crime gangs whose members used sophisticated techniques and many participants. There were now more trials which lasted longer. The courts were flooded. Suspects were suffering from prolonged procedures and lengthy stays in remand even though they had not been convicted of a crime. Perhaps even worse, allegedly dangerous criminals were let loose. The laws had also changed.
As a result, all of the justices agreed that the Kinzey rule, as it had been applied until now, was no longer appropriate. However, they split on the precise remedy.
A majority of four, headed by Supreme Court President Dorit Beinisch, ruled that the Kinzey rule should be abolished, but that the court should have the right, in exceptional circumstances, to prohibit a suspect on trial from testifying at the separate trial of others suspected of the same crimes.
Justice Edmond Levy, who wrote the first opinion, said the rule should be abolished altogether and that all witnesses facing trial should testify at the separate trial of others facing the same charges.
Justice Ayala Procaccia wrote that the court should have the discretion to decide when to prevent witnesses from testifying and when not. In cases in which a suspect's testimony appears to be crucial to the outcome of the trial of others suspected of the same crime, the testimony should be given only after the witness' own trial has been completed.
The state welcomed the court's decision. "The Supreme Court accepted the prosecution's position according to which the Kinzey rule is not suitable to the contemporary situation and is an obstacle to conducting an effective criminal procedure," wrote Efrat Barzilai, head of the Criminal Section of the State Attorney's Office. "The ruling conveys the clear message that we may call up to testify defendants suspected of the same crimes before their trial is over. Only in exceptional circumstances, extreme and unusual, may one wait until the end of the witness' trial before calling him to testify."
The Public Defender's Office said it hoped "the courts would apply the new High Court ruling appropriately so that it will not allow witnesses, whose credibility is questionable to testify before the end of their trial."
The Israel Bar said it was disappointed with the decision, which "causes injury to the rights of defendants to a fair trial. The ruling is another in a series of harmful measures which has reduced the rights of defendants to prove their innocence in court."
It added that the court should have left it to the Knesset to alter the Kinzey rule by legislation. It had already tried to do so twice before without success, "and that was not by chance," the bar said.
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