Guidelines for the Court's Discretion
- At the foundation of the legal system – of any legal system – are principles-the foundation and doctrines of the rulers over the entire system or on certain branches of it; If You Wish: Principles-Foundations and doctrines that the entire legal system is imbued with, and which constitute an inseparable part of all the rules of law, or at least most of them. Principles-These foundations and doctrines are meant to be used, and they serve in our hands, as a tool-Labor, and we do it in our daily lives.
for the application of justice in law. One of the most important of these principles is the principle of restitutio in integrum in the language of Roman law. The principle of restitution to the precedence of the Shalit principle is in private law in cases where there is a balance breach that the law considers to be a breach of balance that deserves the intervention of the law. This is the case in tort law, contract law, enrichment law and not in law, property law, and more. Indeed, the methods of application of the principle are different in different branches of law – so, for example, the application of the principle of restitution to advance in tort law is not the same as its application in contract law – but the principle of restitution is the same. The trial will do its best to restore the situation to its previous state in kind; In the absence of the ability to restore a situation to its previous state in kind, the sentence will be made to restore the state to its previous state as close as it can be restored in the eye (cy-près), and in the absence of the ability to do even so, the universal solvent – money – will serve as a substitute for restoring the status quo ante. This has been the case since ancient times; This is the case in our day as well.
The basic assumption is that a certain person has broken law and order, and that he has not changed the balance of relations between him and others, as is not permitted by law. Instead, the principle of restoration will arise, and in the name of the legal system, we will be commanded to do our best to restore the state of affairs to the way it would have been, in order to violate the balance and balance. We will listen to this mitzva whether in kind, or in kind, or in the payment of compensation or indemnity, or by ordering restitution.
- The path of criminal law is different. Restoring the status quo ante – as the principle in private law dictates – is not possible in its own sphere, but the principle has not disappeared from the scene. Thus, for example, the principle itself will be expressed – but to a lesser extent, albeit – in the-A trial for a person convicted of a crime that will compensate the victim of the offense, even if only partially. The principle will continue to apply itself, and to any set of facts, if it is only given to it and this does not infringe on other principles. Thus, for example, in the matter of indemnification and compensation of a defendant who was found acquitted.
A person who is suspected of breaking a law, reads: If he is suspected of violating by an act or omission, and unlawfully, the order of things that he did before his act, society will prosecute him criminally. However, when a certain person is found acquitted, he reads: When it becomes clear at the end of the criminal proceeding that a certain person did not break the law, the situations are automatically reversed. Now we know that in the criminal proceeding that it initiated, it was actually the state that violated the balance that prevailed prior to that proceeding, and as in itself, the principle of restitution arises; He wakes up and asks that action be taken to restore the situation to its previous state.
- Thus we hear the principle of restoring the status quo ante. First of all, in the ordinary course of events, a criminal proceeding imposes on a defendant financial expenses, sometimes large financial expenses (attorney's fees-law and other related expenses). Second, as a result of the criminal proceeding, a defendant can also bear damages-Money beyond the expenses involved in the proceeding itself. This is the case, for example, if he was in arrest or imprisonment, but not only that. Third, where the defendant is a person-Man-The Yishuv – but not only this – will cause it sorrow and shame, sometimes severe and burdensome sorrow and shame. It is not in a person's best interest that a person's good name is put to the test – and in public – and his privacy is violated. See and compare High Court of Justice 7256/95 Fischler N. Police Commissioner [23], p. 10. Indeed, a person has a presumption of innocence at all times – until he is convicted, but this presumption does not comfort him in his daily life or relieve the tension in which he finds himself during the criminal proceeding. A person's life is no longer what it was before the criminal proceeding, and sometimes it will not return to what it was even after he has been acquitted. See Additional Civil Hearing 7325/95 Yedioth Ahronoth in Tax Appeal N. Kraus [24], pp. 59-61. During the proceeding, the defendant is exposed to the-various discussions, and these are also capable of violating his basic rights. Arrest or imprisonment, apart from the fact that they harm – or are likely to harm – a person's financial balance, can also lead to humiliation and humiliation. Indeed, in the criminal proceeding and its appendices, the state proves by act how great its power is vis-à-vis the individual.
- Where a criminal proceeding ends with a conviction, all these harms that harm the defendant are absorbed and assimilated into the conviction. In the case of such a case, it should be said that these harms were – subject to the principle of proportionality – a necessity-It should not be condemned, without which it would not have been possible to draw a criminal proceeding worthy of its name. This is not the case in the place where a home decides-The trial in favor of a defendant. In the case of acquittal, the principle of restitution is brought to life; He comes to life – and demands that it be done and the situation is restored to its previous state: restoration of the past in the eye; Return to the front in approximation and approximation; Returning to progress on the path of compensation. This is the law in other places in the law. Thus, the claimant argues, it should be in our case-Ours-He. Needless to say, the principle of restitution is not a singular element in law, and when it is awakened to action, they will rise up from their beds as-Principles that contradict him, and everyone – also – will stand before us and claim, each for himself, that he has the right-His advantage is better than the right of his opponents.
So far, the principle of restoring the situation to its previous state. Let us now proceed and discuss additional reasons raised on the issue of the state's obligation to indemnify and compensate.
- A study of the halakha and the words of the Sages will teach us that more and more reasons have been raised to justify the state's obligation to indemnify or compensate a defendant who has been acquitted. See a list of reasons that we have brought in paragraphs 18 to 20 above. Thus, for example, one of the reasons derives itself from the need to supervise a consideration-The opinion of the Public Prosecution. Just as a house-The High Court of Justice oversees consideration-The opinion of the Public Prosecution regarding the opening or non--Opening an investigation or criminal proceedings, regarding the delay of proceedings, etc. And just as you have stopped-The criminal law itself supervises the conduct of the prosecution as a proceeding-The interim one that should not be answered is the award of costs and compensation to the acquitted defendant, which is a means of supervising and controlling the prosecution. Another reason raised to justify the state's obligation to indemnify or compensate is that awarding compensation and indemnification is capable of improving and balancing the status of the individual vis-à-vis the state, ensuring him with adequate representation, encouraging him to receive appropriate representation, and doing him justice in general.
On the other hand, needless to say, there are other interests and principles that cast doubt on the goodness of the state's obligation to compensate and indemnify. Thus, for example, the concern that such an obligation could discourage the prosecution and deter it from taking action to fulfill its obligation. Compare: The Anonymous case [22], at p. 715. "The starting point is that there is a public interest in prosecuting criminals... where the individual violates the rules of substantive criminal law that reflect the needs of the organized society to protect the values that are essential to its proper functioning and desirable development" (Yosef and Sarsor [1], at p. 518), and it is undesirable that due to the fear of being obligated to pay compensation and indemnity, this important public interest has been harmed and lost. Needless to say, the obligation of the state – or of any other public authority – to compensate and indemnify may impose a heavy burden on the public purse (Reich [8], at p. 491; High Court of Justice 320/96 German v. Herzliya Municipal Council [25], at pp. 234-236). This will also lead to quite a few legal proceedings that will attach themselves to the criminal proceedings and overload the burden that is already placed on the court. Cf. Civil Appeal 243/83 Jerusalem Municipality v. Gordon (Gordon Case [26]), at p. 135. It was further argued that defendants may conduct their defense in an improper manner, provided that they receive compensation and indemnity. If this is the case, it is liable to lead to a distortion of the criminal proceeding in its essence. See P.S. Karlan “Fee Shifting in Criminal Cases” [52].
- We will not take lightly any of the reasons raised to justify the state's obligation to indemnify and compensate, but it seems to us that a distinction must be made-distinguish between a main reason and superfluous reasons for the same charge; Between Flavors-From the outset and the flavors-In retrospect. In our opinion, the main reason that led to the birth of the defendant's right-Entitled to the State is the Reason for Restitution
to the front. All the other reasons, reasons that are retroactive, are that after the birth of merit and obligation, the Sages found in other reasons that they do not support the rule of restitution.