Criminal Appeal 98 / 7182
Yuri Shmukler et al.
Against
State of Israel – Ashkelon Municipality
In the Be’er Sheva District Court, sitting as a Court of Criminal Appeals
[27.10.1999]
Before President A. Laron, Vice President Y. Pilpel and Justice N. Hendel
Appeal against the judgment of the Ashkelon Magistrate’s Court of March 8, 1998 in criminal case 260/95 given by Judge Y. Yitzhak. The appeal was rejected by a majority of opinions.
Alexander Shmerling – on behalf of the appellants;
Ilana Marcus – on behalf of the Respondent.
Judgment
Vice President Y. Pepper
- Reporter-The indictment
An indictment was filed against the appellants attributing to them the commission of an offense under section 3 of the Ashkelon Bylaw (Pigs and Pork), 5718-1958 (K.T. 5718-1624) (hereinafter – the Bylaw).
The drafter of the indictment made a mistake in the wording of the indictment by attributing to the appellants an offense under section 3 of the bylaw, since section 7, which is the penal section, should have been attached to section 3 as well. This error can be corrected and I decide to correct the judgment of the trial court by adding section 7 to section 3 of the bylaw.
According to Section 3 of the Bylaw, it is forbidden to sell, cause or permit the sale of "pig meat or its products intended for consumption" within the municipal boundaries of the city of Ashkelon, and anyone who violates this provision is liable to pay a fine, according to Section 7 of the Bylaw.
All the appellants are owners of delicatessens that sold (as alleged in the indictment) pork, during the Irian period.
The appellants denied the facts detailed in the indictments filed against them. Initially, the appellants filed a petition with the High Court of Justice to cancel the indictments filed against them, but from the statements of their counsel, Adv. Shmerling, it appears that the petition was rejected and the Supreme Court ordered that all the arguments regarding the indictment and its legality must be brought before the appellate court (a copy of the High Court of Justice's decision was not provided to us).
After the respondent had finished presenting her evidence, Attorney Shmerling, counsel for the appellants, informed the court that his clients were choosing to remain silent and they did not bring any evidence. In his summaries, Mr. Shmerling sought to acquit all the appellants of committing the offense attributed to them in the indictment.
- Decision-The Law of a House-The Law of the Peace
The appellants did not attack the Local Authorities (Special Authorization) Law, 5717-1956 (hereinafter – the Enabling Law), by virtue of which the Bylaw was enacted, but only attacked the Bylaw on the grounds that it contradicts the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Liberty, as it is "unreasonable, since its provisions are sweeping, especially since it is an absolute prohibition and in the entire Ashkelon area... and that the bylaw... Imposes a complete ban on the sale of pork throughout the city, without taking into account the different population composition and while completely ignoring the fact that there are new immigrants from the former Soviet Union who constitute about a third of the city's population, especially since there are several neighborhoods in the city that are populated by new immigrants who are consumers of pork."