Supreme Court: African Workers' Punishments Should Not Be More Severe Than Israelis'

Justice Yoram Danziger criticized the District Court for terming immigrants' crimes as a 'national plague,' saying 'dual punishment standard is unacceptable'

Revital Hovel
Revital Hovel
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Revital Hovel
Revital Hovel

The Supreme Court accepted an appeal by two asylum seekers who were convicted by the Tel Aviv District Court and reduced their sentences by eight months.

Justices Yoram Danziger, Elyakim Rubinstein and Uri Shoham ruled that it is improper to deal stiffer sentences to defendants and raise this group's range of punishment solely because they belong to a specific population or social group – in this case, asylum seekers. Moreover, the District Court was criticized for saying that recently robberies and violent acts by asylum seekers have become a "national plague," and therefore tougher sentences should be dealt for such offenses.

The Supreme Court ruling related to two separate cases. The first dealt with Angesom Kabari, an Eritrean citizen who applied for asylum in Israel, was convicted of conspiring to commit a crime and aggravated robbery, and sentenced to four and half years in prison. Kabari was convicted of robbing and beating a young woman on Rothschild Boulevard in Tel Aviv in the middle of the night.

The District Court stressed in its ruling that in the past year the phenomenon has greatly increased, and a week doesn't go by without a court hearing in which a foreign citizen has taken part in a violent act or robbery.

"The streets of the cities have become unsafe, peaceful citizens cannot leave their homes for fear of violence and there is a need to send an unequivocal message that the court will not allow a situation where people are afraid to leave their houses and walk the city streets at night," read the ruling.

The passage of the ruling that prompted the Supreme Court criticism read: "The court must warn itself not to be drawn by recent severe events or make generalizations as to refugees and immigrants. Nonetheless, migrant workers and immigrants must understand that in return for their right to enter and reside in the state of Israel, they must obey the laws and not be involved in violent acts."

In the second case, Yossef Bashir, an asylum seeker from Sudan, was sentenced to four years for robbery and disruption of proceedings, after trying to rob a telephone from a woman and impersonating a different person during interrogation.

Judge Zvi Gurfinkel referred to the earlier case and argued that while one must not distinguish the refugee and migrant workers from other criminals, "when the court is presented with a phenomenon becoming a 'national plague,' and this phenomenon is carried out by a certain segment of the population, the court's duty is to defend the public from this phenomenon, and any argument as to discrimination or racism must be rejected."

Gurfinkel's conclusions referred to the ruling in the Kabari case.

In the appeal to the Supreme Court, Ala'a Massarwa and Tal Aner of the Public Defender's Office argued that the judge's determination that asylum seekers are disproportionately responsible for crime is also not based on fact, "and is in no way relevant to sentencing."

The Public Defender's Office says the judge's findings are based on an "anecdotal impression," as the crime rate among asylum seekers is about half that of the national average.

Public Defender's Office data indicate that the crime rate among foreigners in Israel is 2.24 percent, compared with 4.99 percent among the general public. Aner and Massarwa added that it is illegitimate to deal stiffer sentences to asylum seekers and the increase in the range of punishment for a specific group might cause discrimination, generalization and the categorization of defendants according to race, ethnicity, religion or sex.

While the Public Defender's Office argued that the punishment was extremely severe for robbery, the state argued that the robbery of cellular phones had become an all too common phenomenon and that the victims suffered significant psychological damage, thus necessitating the increase of the range of punishment in order to deter future criminals.

Justice Danziger argued that in order to term this a "national plague," the judges must base their words on facts and data, not the cases he encounters. "The court must be careful before it terms any criminal offense as a 'national plague,'" Danziger wrote, "since often, the fact that in a certain geographical area there are many similar offenses does not mean these offenses are as common in other areas in the country."

Danziger added that even if the District Court could consider the increase in criminal offenses, it cannot take into consideration that the defendant comes from a certain segment of the population when determining the sentence. "Can one set a different range of punishment for robbers who are asylum seekers from that of Israeli citizens charged with a similar offense? I believe the answer to this question must be negative," Danziger wrote.

Danziger wrote that "in a civilized society a double punishment standard is unacceptable, since it contradicts the principle of equality."

Danziger also wrote that he does not believe that the District Court dealt stiffer sentences to the defendants who appealed the Supreme Court, only because they were asylum seekers, and that their sentences are not the result of discrimination. Still, Danziger criticized the District Court and wrote that "it would be preferable that the District Court would choose a different wording," but noted that the court's intention was to deter the migrant workers and asylum seekers.

Danziger, whose opinion was supported by Shoham and Rubinstein, commuted eight months from both sentences.

Migrants in southern Tel Aviv.Credit: Ilan Assayag

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