I agree to the ruling-The Judgment of My Friends Judge M. Cheshin.
Justice T. Or
I agree to the ruling-The Judgment of My Friends Judge M. Cheshin.
Judge D. Beinisch
I agree to the ruling-The Judgment of My Friends Judge M. Cheshin.
Judge D. Dorner
I agree to accept the appeal as proposed in the judgment of my colleague Justice M. Cheshin. I accept, in both parts, his conclusion that the State's retraction of the appellant's accusation is grounds for awarding legal expenses and compensation (hereinafter also – payment), while the District Court's reasons for rejecting the appellant's application because of the "very close to conviction" things that were said about the appellant in the judgment in which he was acquitted, justify only a partial indemnity and compensation award. However, my legal approach to supporting this result is different from that of my colleague. I will therefore present my view.
- As detailed in the judgment-The Law of My Friends Judge M. CheshinDuring the trial, the prosecution received information that, had it been in its possession in the first place, would not have been submitted in writing-The indictment against the appellant. Despite this, he rejected a house-The District Court granted the appellant's request for legal expenses and damages because the-The trial was close to convicting him. My colleague is of the opinion that in these circumstances the appellant is entitled to legal expenses and compensation, and that the-The trial was close to convicting him, which should be reflected in the reduction of the payment. However, my colleague saw fit not to set aqueducts-Measure for Exercise of Consideration-judgment in rulings on legal expenses and compensation.
- I am also of the opinion that the cause of action should not be limited to "other circumstances that justify [payment of defense expenses and compensation]..." in section 80(a) of the Penal Law (hereinafter – the Law), on-By establishing a closed list of amot-Measure for Exercise of Consideration-The opinion according to the section. As I said Justice Zamir In a Criminal Appeal 7826/96 (hereinafter – Criminal Appeal Reich [8]), p. 497, "It is forbidden to clip the wings [of vague expressions] and imprison them in a cage of a strict rule. Such a rule could kill them."
However, refraining from setting a closed list of considerations and criteria, in which only those who meet them will be entitled to expenses and compensation, does not negate the need to set criteria for the exercise of the authority. Such standards will guide the courts in exercising their discretion and will ensure, to the extent possible, equal and consistent treatment of defendants acquitted. Compare, regarding the financing by a local authority of the defense expenses of the head of the municipality who is acquitted of offenses attributed to him in connection with his tenure, High Court of Justice 320/96 German v. Herzliya Municipal Council (hereinafter – High Court of Justice German [25]), at p. 237; and also regarding guidelines for the exercise of discretion of administrative authorities, Y. Zamir, Administrative Authority (vol. 2) [40], At pp. 789-791. In my opinion, a casuist case law without guiding criteria, while going from case to case according to its special circumstances and using a general list of considerations that do not lead to a definite result, will find it difficult to achieve this goal.
- In my opinion, true-The proper amount of payment of court expenses and compensation to defendants who have been acquitted in the trial is the type of acquittal – whether it is doubtful or absolute. Absolute acquittal, which he will buy according to truth-This is a right to payment, even if there was no basis for filing a writ of habeas corpus in the first place.-The indictment, or in retrospect it turned out to be the case.
This criterion is consistent with the purpose of section 80 of the Law, according to which, on the one hand, the acquittal is a condition for awarding legal expenses and compensation, but in itself it is not sufficient; and on the other hand, the lack of a basis for guilt, which means a full acquittal, constitutes grounds for payment. I do not believe that this grounds should be limited to those cases in which the filing of the indictment was unreasonable, i.e., cases that establish a cause of negligence against the State that entitles the defendant to full compensation, within which the entitlement under section 80 of the Law constitutes only a kind of prompt payment.
- Truth-A measure based on the type of acquittal is also accepted in administrative arrangements for reimbursement of legal expenses for civil servants who have been prosecuted for an act they committed in the performance of their duties. Thus, in the procedure that regulates the work of the Legal Aid Committee for a public servant who has been prosecuted for an act or omission that he committed in the performance of his duties, it is determined that when the committee comes to determine the rate of the state's participation in defense expenses, it will take into account, inter alia, the provisions of the judgment-The Equitable Law of a House-The Trial. Based on this directive, the committee customarily approves only partial participation in the financing of legal expenses for an employee who is acquitted due to doubt. See the example cited in the case of the High Court of Justice German [25], p. 235.
In the case of the High Court of Justice German [25], which also deals with the reimbursement of defense expenses for public figures acquitted due to doubt, it was ruled that the amount to be borne by the public coffers will be determined, inter alia, according to the type of credit. It was held, ibid., at pp. 236-237, that the consideration –