Criminal Appeal 4466/98 Honey v. State of Israel IsrSC 56(3) 73 Judge M. Cheshin - part 2

Therefore, the accuser retracts the indictment and seeks to acquit the defendant.

After receiving the consent of the appellant's counsel, the court decided to acquit the appellant.

4. After he was thus acquitted, the appellant sought to obligate the state and the complainant to pay compensation for his arrest and to pay his defense expenses. The state objected to the request, and at the end of the hearing, the House decided-The law is to reject the request.  On this, as stated, the appeal before us.
5. Whether the appellant is entitled to indemnification for expenses he incurred and compensation for his arrest is the disputed question between my husband-The law, and its branches, will be discussed later in our discussion. The order of the discussion will be that at first we will examine the law, we will do our best to interpret it – an interpretation in the narrow sense of the concept and an interpretation in the broad sense – and then we will apply the law to the facts of the case.

The Normative Outline

6. Our Matter 62-Following the instruction Article 80 of the Penal Law, which states:

Section 80 is found in Section F of Chapter F of the Penal Law; the title of the section is "Compensation and Expenses" and includes sections 77 to 81.  A criminal proceeding naturally involves expenses and considerable mental anguish for the parties concerned – first and foremost the defendants and the complainants – and these provisions of the law are intended – according to the standards set forth therein – to compensate and indemnify those who were found worthy of compensation and indemnification as a result of a criminal proceeding.  Thus, for example, the provision  of section 77 empowers a court to compel a defendant who has been convicted of a crime to compensate a person who was harmed by the act of the offense; Section 79 of the Law authorizes a court to oblige a defendant convicted of a felony to pay court expenses, including the expenses of witnesses; Section 81 of the Law authorizes a court to compel a complainant to pay the acquitted defendant and the state expenses that they have incurred, one in his defense and the other in its charge.  In this society there is  section 80, according to which a court is authorized to oblige the state to pay the defendant who is acquitted of his defense expenses and to continue to compensate him for arrest or imprisonment because of the charge from which he is acquitted.  We, our concern is with the provision  of section 80 of the Penal Law, and we will dive into its deep waters.  We will not discuss the other reparations provisions, but we will remember and maintain that the provision  of section 80 does not belong alone; she is the daughter of a family that is excluded from the margins of the penal law, and it deals with compensation and reparations for those involved in the criminal proceeding.  Later in our discussion, we will again address this issue of compensation and reparations in general.

7. Wording of the Provision Article 80 The Penal Code is not a very successful formulation, but a study of it will reveal to us clearly what message it sends towards us. Two conditions must be met, and if both are met, a house is permitted-A law to oblige the state to pay compensation to a certain person who was accused in a criminal trial and to indemnify him for expenses he incurred during his trial.  These are the conditions: One, because a certain person was on a criminal trial and was acquitted.  See and compareCriminal Appeal 1767/94 Joseph N. State of Israel (Parashat Joseph and a Pimp [1]), p. 519.  The same law will apply in a case where an indictment is dismissed as a provision Section 94(b) of the Criminal Procedure Law [Consolidated Version], 5742-1982 (Kindness), read:In the place where he abolished a house-Written Sentence-An indictment with the consent of the plaintiff and the defendant even after the defendant's response to the written-The indictment.  Two, Seeing a home-The sentence is one of two of these: one, "there was no basis for the accusation," and two, in the case where he "saw" a house-The phrase "other circumstances that justify it."  While the first condition – the acquittal of a defendant in the trial or the cancellation of the-Indictment-Phi Section 94(b) For kindness – a formal and rigid condition, the second condition is a flexible condition in the areas of interpretation.And so on.  This is especially true in the second instance of the second condition, in the same "circumstances...  that justify the state's obligation to compensate and indemnify.  These are "circumstances...  that justify compensation and indemnification, and when will a house be convinced?-A law that there were indeed circumstances that "justified" compensation and indemnification? The law made a home-The law - explicitly - legislature-Mishna, and the question is nothing but how he should guide himself in a house-The judgment and he shall not sin.  The concept of "justice", as well as the concept of "circumstances justifying" compensation and indemnity, such are the two incredibly elusive concepts.  We must therefore set up a Zionist-A way, even if it is a Zionist-General way, on-Their mouths will weigh a house.-The trial if it grants and if it does not grant the request for compensation and indemnity.  In these deep waters, we will try to swim and not drown.

A little about the history of the law

8. A journey to search for roots will teach us that teaching Article 80 The Penal Law had an extensive parental lineage. We also learn that over the years, the law has further expanded the right of a defendant who is found to be entitled to compensation and indemnity for a criminal proceeding that was against him.
9. The beginning of things was In the Criminal Law Ordinance, 1936, In section 44(2) In it. In accordance with the directive-This law, where a defendant is acquitted, is acquitted in the court and at home-The court held that he wrote-The indictment was easily filed-Knowledge or for the sake of teasing (frivolous and vexatious), House Certified-The law to bind the person who brought the accusation or the person who submitted the accusation to the house-The trial is to pay the defendant who is acquitted the defense costs.  However, it was explicitly stated that there is no

To obligate the payment of a public servant who acted in the capacity of his position.  We will give our opinion on these three: one, because the Public Prosecution could not have been obligated to pay the defendant's expenses.  two, because a defendant could not have won compensation for arrest or imprisonment.  Three, because a defendant could not have won compensation unless the indictment lacked a proper basis in the first place.

10. The next stage was to teach Section 36 of the Penal Laws Amendment Law (Methods of Punishment), 5714-1954. Instruction Section 44(2) of the Criminal Law Ordinance canceled, and it was determined that in the place where he "saw" a house-The trial "that there was no basis for the accusation" may order that the State Treasury pay the defendant his defense expenses in the amount set by the House-The Trial.  Here-Because-Yes, it would have been possible from now on to obligate the state to pay the defendant's expenses as well, but apart from that, a provision remained-The law, mainly, as it was.  The Criminal Procedure Law, 5725-1965 added instruction To Article 36, according to which in a trial conducted by a receiver, a house may-The sentence to order payment is also in the hands of the same complainant.  Instruction Article 36 As amended, it changed its name – but not its content – to the Directive Section 43 of the Penal Law (Methods of Punishment) [Consolidated Version]], 1970 (The Methods of Punishment Law, 5730).
11. A significant expansion of the acquittal of a defendant comes after about a year Penal Law (Methods of Punishment) (Amendment)), 5731-1971. From now on, the defendant was granted the right not only to pay his defense expenses but also to "compensation for his arrest or imprisonment due to the charge from which he was acquitted", and all - both the defense expenses and the compensation - "in an amount that will appear to the court".  This law was passed on-According to a member's bill-Knesset Yoram Aridor (Proposed Law to Amend the Penal Laws (Methods of Punishment) (Amendment), 5731-1971).
12. Additional significant expansion and change was made in the Penal Law (Methods of Punishment) (Amendment No. 3), 5735-1974. The expansion – which was also the result of a friend's initiative-The Knesset of Yoram Aridor - by way of adding grounds in favor of a defendant who was acquitted.  Thus, alongside cases in which there was no basis for the accusation, a cause of action was added, and it is instead of "... She's seen [house]-The trial – M.H.] Other circumstances justify this..."  The expansion of this right came as explained in the explanatory notes to the Proposed Law for the Amendment of the Penal Laws (Methods of Punishment) (Amendment No. 3), 5734-1974, and as explained in the Knesset (Knesset session of November 12, 1974, D.K. 72 (5735) 328, at p. 350), due to the limited scope for the preceding ground, which led to a small number of cases in which compensation was awarded to a defendant who was acquitted.  As for the change: In addition to the power to compensate and indemnify a defendant who is acquitted "in an amount that will appear to the court", the Minister of Justice was granted the authority to determine in the regulations, with the approval of the Knesset's Constitution, Law and Justice Committee, maximum sums

for such expenses and compensation.   The discretion of the court therefore allowed it to move in the space as will be determined in the regulations.

13. Instruction-This law in section 43 of the Methods of Punishment Law, 5730, as amended, inserted itself into the provision of Article 80 to the Penal Law, and Section 80 To this day, he has received two amendments of his own: one, in 1980 (the Penal Law (Amendment No. 9), 5740-1980, according to which paragraph (c) was added to it and the right of appeal was given to the victim of a house decision-The law, and the second in 1995 (Article 25 to the Criminal Procedure Law (Amendment No. 19), 5755-1994), according to which the ground for an indictment that was cancelled was added. Instruction-This law in section 80, in her image and image today (see paragraph 6 above), she is the one before us for clarification and interpretation.

We will add further, and it is for our purposes directly as we shall see below, that the Minister of Justice, with the approval of the Constitution, Law and Justice Committee of the Knesset, made use of the authority granted to him in section 80(b) of the Law and enacted regulations called  the Rules of Procedure (Compensation for Arrest or Imprisonment), 5742-1982 (the Compensation Regulations).  The Compensation Regulations determine the procedures in a claim for payment of expenses and compensation; the maximum amounts of compensation for each day of arrest or imprisonment and the maximum amounts of expenses to pay the defendant's defense expenses.

14. We will not complete our work if we do not continue to study the teaching of Article 38 of the Criminal Procedure Law (Enforcement Powers - Arrests), 1996 (The Arrests Law), and deals with indemnification and compensation of a person who was arrested and released without a writ of habeas corpus filed against him-Indictment. Instruction-This law is a daughter-The Character of the Teaching Article 80 to the Penal Law, and this is how it speaks to us: