The Kremnitzer brief
Now that his name has been removed as candidate for the Supreme Court, preeminent criminal law expert Mordechai Kremnitzer takes off his gloves.
If Meni Mazuz had left the Justice Ministry when he was appointed attorney general and had opened a law office of his own instead, I doubt very much whether anyone suspected or accused in a significant criminal case would have asked Mazuz to represent him. Along comes the State of Israel, with its tremendous public interest in the enforcement of the criminal code, and with its difficult, complex cases, and places this task in his hands. True, he has advisers and so forth, but the final decision is his, the responsibility is his. It looks to me like something that's - how to put it? - irresponsible. Irresponsible."
The speaker, Prof. Mordechai Kremnitzer, from the faculty of law of the Hebrew University of Jerusalem, is Israel's preeminent expert on criminal law. Until recently he was a leading candidate for a post on the Supreme Court. Kremnitzer, who often commented publicly on controversial issues when he was president of the Israel Press Council, has kept a low profile for the past two years at the request of former Supreme Court president Aharon Barak. Barak thought Kremnitzer needed a transition period before becoming a Supreme Court justice and asked him personally to cut back on his public statements.
Kremnitzer eventually decided to withdraw his candidacy for the highest court of law. His espousal of judicial activism rankled some, while others looked askance at his left-wing attitude. "You can't appoint a post-Zionist to the Supreme Court," says attorney Yeron Festinger, a member of the committee that appoints judges. Another committee member notes Kremnitzer's participation in discussions of Jewish and Arab intellectuals concerning determination of the boundaries of a common Israeli identity. Kremnitzer said he would be willing to change the flag and the national anthem "in order to enhance their identification with the state," a position he continues to hold. He adds that he is a "devout supporter of Israel as a Jewish state" and points out that he resigned as codirector of the Arab-Jewish group he belonged to "because the Arab members were not willing to legitimize Israel as a state of that kind. So the allegation of post-Zionism doesn't have a leg to stand on."
Did you decide to abandon your candidacy for the Supreme Court for good?
Kremnitzer: "I am no longer a candidate to serve as a justice of the Supreme Court."
Were you disappointed at not being nominated?
In any case, Kremnitzer now feels freer than ever to exercise his freedom of expression - as a research fellow of the Israel Democracy Institute, as an academic, and above all as a concerned citizen. A case in point is the subject of the plea bargain struck between the state and former president Moshe Katsav.
"It is difficult to accept that decision as it was grounded, and in light of the expectations the attorney general created in his earlier statements, which exceeded what is proper," Kremnitzer says. "The attorney general should not evaluate the evidence for the media and say that the probability of a false accusation is lower than some other explanation. That is not proper. If the grounds for the decision in the Katsav case were legitimate, anyone who is not familiar with the material evidence - and I am not familiar with it - would have a hard time criticizing the decision meaningfully, even if he thought intuitively that it was wrong. But the combination of the grounds together with the previous moves left a bad feeling about the arrangement.
"Mazuz's explanation concerning the honor of the presidential institution rests on a misunderstanding. The institution is not Moshe Katsav, but the role in the abstract. If the institution of the presidency and Moshe Katsav were interchangeable, then there is no doubt that the institution should disappear from the political map. The only way to preserve that institution is by means of this differentiation. And in any event, if we start to play these games of honor, we will end up behaving differently toward the people who hold high posts, and the whole idea of equality before the law will be shelved."
Mazuz says he is obeying his conscience, not polls or the public mood.
"His attitude toward what he calls public criticism suffers from a basic misunderstanding. I assume that there is prima facie evidence that would allow a fair prosecutor to file a rape charge. After all, the attorney general and the state prosecutor say that if there had not been a plea bargain, they would have filed a rape charge. If a prosecutor can choose between two alternatives - going to court or striking a plea bargain - he needs to weigh the impact of his decision on the public's confidence in the judicial system and in the law. That is not populism. That is not surrendering to public opinion. Those who head a public system of this kind must ensure that it enjoys the public's trust.
"When it became clear to the attorney general that his decision would severely affect the public's confidence in the law enforcement system - that should have been a relevant, legitimate, weighty consideration, and not one brushed aside by saying, 'I knew there would be criticism, but my role is not to be impressed by criticism, but to display courage in the face of the critics.' That is a childish, immature approach, which also does not fully comprehend the job of the attorney general. In this case, as in the case of the 'Greek island' affair [involving former prime minister Ariel Sharon], the attorney general is living in an unrealistic world of what a case that is brought to court must look like. He is after some sort of perfection, a 100-percent-sure conviction."
But Mazuz says he is weighing the evidence as though it were being presented in court.
"There is something odd here. If I understood him correctly, he said that he believes the complainants in terms of their maximum version. So why does he think the court will be less able to understand, less capable of evaluating, what he understood? That broadcasts a lack of confidence in the judiciary."
Mazuz was highly critical of the acquittal of public figures during the period of Edna Arbel as state attorney, and has said proudly that he has a 100-percent conviction rate of public figures.
"This is a misunderstanding and also harmful to equality before the law. An attorney general cannot be tested by whether every case he takes to court will result in a conviction. If that is the standard, we do not need courts. If the attorney general reads the minds of judges so perfectly, let him sign off on the conviction and we will spare ourselves the proceedings."
Mazuz noted that the complainants sent love letters to Katsav after they were allegedly raped, and that one of them told friends she was having an affair with him. Is that rational behavior by women who claim they were raped?
"What both Katsav's lawyers and the attorney general are doing is to discredit the complainants, which in itself is very problematic. Even without this, the women have very good reasons not to file complaints, and they then find their credibility being questioned. That is a terrible message. The way the complainants' response to the plea bargain was requested also sent a terrible message. It was perfectly clear that the process [of getting their consent] was treated as a formality. There was no genuine process here. They were not given the opportunity to respond intelligently. That is neither legal nor fair, and it is humiliating to the complainants. They underwent a serious campaign of slander. For them, it's like being used and disposed of.
"Now to the substance of the issue. I think that people do not sufficiently understand the special situation of abuse of relations of authority, which differs from brutal rape. In extreme cases of abuse of relations of authority, it's not all that different from a father who has sexual relations with his daughter. Therefore, the whole matter of free consent is almost impossible. In the case of a father and daughter, everyone understands that there is no meaning to 'free consent.' These situations are a bit less extreme, but not so far from that. Consequently, the most minimal degree of temptation, of promise, of pressure is enough for there to be abuse, because the law does not make do with the mere existence of relations of authority: The law requires the abuse of those relations. And I say, all that is required is the barest minimum."
In other words, if Katsav promoted A., that is enough?
"Exactly. Or if he even gave her to understand implicitly that it would be worth her while. That is more than enough. Now, when you first of all have this element of closeness, as between father and daughter, and in addition benefits, promotion, a promise of a relationship - that unavoidably creates an internal dichotomy regarding her attitude toward the offender. You have not only rejection and hurt, but also attraction and gratitude. The worst of it is that you tear her apart inwardly. That is why [the women] project different things, which appear irrational and seem to indicate unreliability. In my opinion, that only proves the situation, because that is its natural product.
"And after such a relationship ends, what does a young woman like that tell herself? She has to live with it, you know. In my opinion, she is again torn between a feeling of humiliation and hurt, of having been exploited, and telling herself that it was an affair and a genuine relationship. So it is not surprising that people who talk to her will hear that account. Accordingly, it is not surprising that a gift is sent to him or that there is an attempt to renew the relations. By the same token, if a complainant finds it difficult to describe the details of the sexual act in regard to whether penetration took place or not, that does not indicate a lack of reliability. Sometimes what appears to be different versions is actually one tormented version."
What is your principal lesson from this case?
"My lesson is that it is wrong to appoint public figures to senior posts not only if they have a criminal record, but also if their record does not project credibility and integrity. A problematic record can be one based on investigations that were shelved due to lack of evidence, findings in a report by the state comptroller, an acquittal that does not fully clear the person's name, or even rumors, if they are persistent. If the public will not act according to these criteria, we are liable to find ourselves again facing the disgrace of a state president whom the attorney general describes as a 'serial sex offender,' or a prime minister whose term of office is punctuated by investigations that certainly affect his functioning as prime minister as well as his public legitimacy."
You say that rumors are enough to disqualify someone? We could quickly slide into McCarthyism.
"If I were a Knesset member who heard persistent rumors that a particular candidate for the presidency is a serial sex offender, I would not vote for him. The idea that a public figure must be beyond reproach is, I believe, correct."
Prof. Kremnitzer's concern about the attorney general dates back three years, when Mazuz closed the "Greek island" case, in which then prime minister Sharon was suspected of having received bribes from businessman David Appel, in connection with a proposed tourist project in Greece. The plea bargain with Katsav convinced Kremnitzer fully that Mazuz and State Prosecutor Eran Shendar do not have the necessary qualifications to lead the battle against corruption in the government.
Kremnitzer analyzed the decision in the Greek island case in a research project he directed at the Israel Democracy Institute. He finds a worrisome similarity between the decision in that case and the plea bargain with Katsav, which takes the form of a lenient and forgiving attitude toward the behavior of high-ranking public personalities.
Kremnitzer: "A special standard was applied in the attorney general's report on the Greek island affair. There is an almost worshipful attitude toward the accounts provided by Appel and Sharon, as though they were disinterested witnesses for whom truth is a beacon. And, there is an expectation, again of some sort of smoking gun, of a conversation in which Appel and Sharon discuss the matter explicitly, though everyone understands that no such conversation will ever take place between two sophisticated adults, who do not use that type of language. That is not how things are done in bribery transactions. It was the same unrealistic expectation that dictated the plea bargain with Katsav.
"I think there is a crucial structural conclusion to be drawn here. I am convinced that Meni Mazuz is a very talented jurist. I am convinced that he is suitable for the role of legal adviser to the government [the Hebrew term for attorney general], in the sense of consulting the government. I doubted then and I continue to doubt that he has the necessary qualifications to head the general prosecution."
So the position should be split in two?
"Yes. There will be no other choice."
Should Mazuz quit?
"No. I am afraid that this government and its agenda will bring about the selection of a far worse attorney general."
Kremnitzer believes that the choice of Eran Shendar as state prosecutor was also a mistake: "Shendar is decent and honest, and he has many positive traits, but I would not describe him as a salient professional authority in the criminal field. When there is no one at the top who is an authority in the criminal sphere, it is not a good situation."
Kremnitzer is also not impressed by what is considered Mazuz and Shendar's biggest coup: the indictment and conviction of former justice minister Haim Ramon for kissing a young soldier against her will. Kremnitzer was appalled by Mazuz's comment, "I suggest that everyone think about his daughter, his wife or his sister in this kind of situation - whether he wants to live in a country where a minister behaves like this toward a soldier in a government ministry."
Kremnitzer: "That is a serious and unacceptable crossing of the boundary lines. These statements are improper, including also the congratulatory statement by the State Prosecutor's Office or the Justice Ministry to the court for Ramon's conviction. And if the court had acquitted him, they would not have offered congratulations? They would have cursed the court?"
What did you think of the Ramon affair?
"I am divided; I don't have an unequivocal position. I am not convinced that this was the case in which heroic efforts should have been made to get an offended party, who did not want to file a complaint, to do just that. There are cases in which this is the right thing to do. Here, we had above all a failure of leadership. Anyone who found out what had happened should have gone to the prime minister - there's nothing one can do; in the gloomy Israeli reality the prime minister has to be like a kindergarten teacher - and what the prime minister should have done with Ramon was (a) to send him to apologize and (b) to strip him of the justice portfolio, and for a certain period to remove him from office altogether. But there should have been a response at the public level, again, on the assumption that the complainant would have accepted the apology. I think she would have accepted it: In relations between people there can be misunderstandings or mistakes in understanding messages. I think that would have been accepted much better."
What about the judgment that convicted Ramon, but found that there was no turpitude involved?
"The result of a criminal conviction that finds that there is no turpitude is wrong. In the end, it does not transmit any sort of correct message - on the contrary. In the final analysis, the message is that people who do these things will ultimately succeed, because their political career, which is what is important to them, is not affected. The person is even promoted. I absolutely cannot understand how anyone can countenance that.
"On the legal level, I thought all along that the prosecution had some sort of evidence, according to which it could be shown with certainty that Ramon was aware, or at least suspected, that the woman in his case did not consent. Could it be proved that he harbored criminal thought? The court wrote a great many pages on a subject it could have dealt with in two or three pages, and did not address properly the legal question of the mental element. The court posited a test, which is not the test of the law. Consequently, if I ask myself whether this was a conviction based on the existing law, I remain with a question mark.
"In this case, Mazuz behaved differently from his usual pattern. He said: There are two versions, let the court decide. If he had applied that criterion to the Greek island case, the right thing would have been to say that according to one version, it was a bribery case, but there is also an opposite version, so let the court decide."
Mazuz is about to make critical decisions concerning the prime minister and the former finance minister.
"I say again, not with a light heart: I have been worried since [his] appointment. Because appointing as attorney general someone without salient experience in the criminal field is irresponsible. And you can never know how this will manifest itself. I think that one of the characteristics of this is his unreasonable expectations from the courts. His fear, in my opinion, of acquittals."
Don't you think Mazuz was reacting to the state prosecution's wholesale indictments in the 1990s? Mazuz is against what he called "experiments on human beings."
"I don't think there was any such phenomenon. A prosecutor has to be ready to go to court. That is not an experiment on human beings. Going to court is an experiment on human beings? No way! No way!"
There is one front on which Mazuz and Shendar have Kremnitzer's full support: the struggle against the new justice minister, Prof. Daniel Friedmann. Friedmann recently sought to change the procedure for appointing the state prosecutor, so the cabinet would have a greater say. "The selection of the state prosecutor must be free of any involvement by the political echelon," Mazuz said, to which Friedmann retorted: "The fact that the attorney general, who is a civil servant, however senior, is publicly critical of the minister to whom he is accountable is totally improper."
Kremnitzer: "The justice minister displays a misunderstanding of what constitutes freedom of expression in a democracy when he says that the attorney general must not inform the public of his objection to proposals to change the mode of appointment of the attorney general and the state prosecutor. Apparently, the justice minister envisages some sort of submissive figure, who does not dare disagree with the justice minister's opinion, and that is very worrisome."
Friedmann cites the principle of the separation of powers as his reason for wanting to change the procedure for appointing the heads of the public prosecution. Kremnitzer offers a different explanation: "When you have a prime minister who is under criminal investigation, and at this time someone has the audacity to try and change the procedure for choosing the state prosecutor and the attorney general, every sensible person will say: This is an attempt to affect the substantive appointment procedures of these office-holders for unacceptable and dangerous reasons.
"I see Friedmann's idea, which would oblige the committee to recommend a number of candidates, as a means of enabling the government to choose the least suitable candidate, for irrelevant and foreign reasons.
"By the way, in my best judgment, Mazuz's appointment out of three candidates that were recommended by the Bach Committee was made based on the evaluation that he would be the most convenient in terms of the Greek island case. Sometimes there are surprises, but in my opinion that is the decisive consideration that led to his appointment. I think Mazuz also had a reputation of being ready to protect the establishment more than the other candidates. So, the more candidates there were, the greater the prospect was that the least suitable person in terms of the public interest would be selected, but rather the one who was most suitable for the narrow personal interests of figures suspected of criminal offenses or of people who are hostile to the rule of law."
What about Friedmann's appointment?
"We see a phenomenon of diminishing trust in the judicial system, including the Supreme Court, and also in the law enforcement system. If this tendency continues, it will have the gravest implications for the attitude toward the law in this country. The question, of course, is why this is happening. In the past few years, these systems have been discredited publicly and in the media. The primary cause of the mistrust is that corrupt motives are attributed to people. For example, when a prosecutor is said to concoct a case. Concocting a case means taking something you know is not a case and going to court with it. If it is not a false accusation, it borders on that. It is the type of thing people do not do in good faith, only the most depraved and corrupt people of the basest kind.
"If I look at the public map and ask myself if there are people who have a critical role in discrediting the judicial system, then, regrettably, Prof. Daniel Friedmann is undoubtedly one of those in the forefront of the campaign, if not the leader. When the prime minister says, 'Look, I appointed an Israel Prize laureate, a great legal expert' - that is, of course, a snow job. Because Daniel Friedmann was not made justice minister due to his great expertise in civil law. He was appointed because of his campaign of newspaper articles, which he launched a few years ago, to discredit the judicial system. That is both the message and the agenda. In the wake of that appointment, I view this government as one that is waging a battle against the legal system in Israel. That, in my opinion, is something that did not exist in the past. There was no previous government that adopted a systematic, deliberate campaign to harm the legal system in Israel."
Friedmann says the police are exaggerating in regard to white-collar crime and the connection between big capital and government, at the expense of assisting the citizenry.
"I also have the feeling that the police are not doing enough in terms of ensuring the security of the ordinary individual, which is an elementary duty of the police. At the same time, I absolutely do not accept the allegations of excessive enforcement in the realm of offenses by public figures. I want to warn against the concept that the best way the government has to 'reduce' corruption is to stop investigating corruption. I think that anyone who wants to cut back or adversely affect the efforts being made against corruption either does not understand the phenomenon or wants corruption to exist. As simple as that."
But maybe Friedmann is right and Israel is suffering from excessive litigation?
"There is one way for there to be less resorting to the courts: for there to be public norms. Like the model I fantasize about in the Haim Ramon matter. If that had been handled correctly at the administrative, leadership level, it would have been better. If, for example, the police did not promote officers convicted of using violence against civilians to senior posts, if the public security minister understood himself that he could not make Yaakov Ganot, with his record, the No. 1 cop, who has to project integrity to his subordinates; if it were clear that you cannot take Yisrael Sadan, who was convicted of bribe-taking a year ago, or less, and invite him to enter the Border Police; if the public norm, for example, was that when a person acts through emissaries - Sharon through his sons, for example - it is self-evident that he is responsible for everything they do. If the public norm was that a person is appointed according to his suitability and his expected contribution to the post, and not according to other considerations - if those were the norms, then the need to go to court would recede naturally, automatically.
"But the same people who are railing against excessive legal intervention are the ones who absolutely do not recognize public norms. They always ask only one question: Is it criminal? If it's not criminal, then everything goes. There is simply no category of public worthiness. And if after this, the system treats the guardians of the gate, the people who are trying to protect the rule of law, the way it does, then the danger of undermining the rule of law in Israel is very great. The removal of the former head of the police Investigations Department, Moshe Mizrahi, is undoubtedly the most frightening case in this connection."
What do you think of Friedmann's initiative to change the structure of the committee that appoints judges and to limit the strength of Supreme Court justices on it?
"Any proposal that will increase the political power on the committee, or diminish the committee's professional level - for example, by appointing a Magistrate's Court judge to it - is a bad proposal. Its logic is incomprehensible and it poses a very great danger of making the appointment process completely political. These are bad, dangerous proposals."
In the name of the separation of powers, Friedmann wants to deprive the High Court of Justice of the power to overturn Knesset legislation.
"This shows a misunderstanding of the concept of checks and balances in a democratic system. If all you have in a democracy is that the majority can decide as it sees fit, you effectively leave the minority unprotected. Accordingly, people with even minimal commitment to human rights and minority rights understand that the power of the majority must be restrained, and that can be done by a judicial review of laws. The fear that the court, in protecting human rights, will unreasonably affect vital public interests such as the security of the state, is totally unwarranted. In the end, the judges are not from the UN. They are from here. They are Israeli patriots and the state is precious to them. So the apprehension that there is some insane group that is harming security in the name of protecting rights is utterly groundless. On the other hand, the apprehension that the majority will unjustly harm human rights and minority rights is quite realistic. If you leave everything to the political system, you are thereby placing the minority completely at the mercy of the majority.
"Overall, there is a campaign to dwarf the court, to undercut the general prosecution and turn it into a cowardly, abject, frightened system. Generally, there is a campaign aimed at allowing the government to behave arbitrarily, to deprive the citizenry of checks and balances and means that were developed over the years to allow people to protect themselves and the public against governmental arbitrariness, against the abuse of governmental power."
How would you sum up Aharon Barak's term as president of the Supreme Court?
"There is no doubt that Barak, as a justice and as president of the Supreme Court, made an incalculable contribution to the Israeli legal system. At the same time, he made a surfeit of statements outside the framework of the judgments. No small part of the assault on the court and the feeling that the court is imperialist is due not to the judgments, but to all kinds of speeches and declarations about revolutions and the omnipresence of the judicial system. If you read the judgments, you see that this is not what he said, at the bottom line.
"The court under Barak did not excel in raising a banner against public corruption. True, the judgment in the [Shimon] Sheves case in the last round was an attempt to rectify this, but this cannot be the source of the court's pride. In addition, the judicial supervision of what is going on in the territories is far from being a glorious chapter in the court's rulings. The court perhaps evaded the deliberation of the legal status of the settlements for quasi- political considerations, and sweeping authorization was given to demolitions of houses. I think that in regard to the targeted assassinations, the reins were loosened too much." W
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