Panim [58], at p. 764; A. Barak, "The Constitutionalization of the Legal System in the Wake of the Basic Laws and its Implications for Criminal Law (Substantive and Procedural)" [139]).
- The right to a fair trial also extends to extradition laws. Its manifestations, as emerges from the Extradition Law, are many: the principle that negates "double risk"; the prohibition on extraditing a person on political grounds or out of discrimination; the requirement to present prima facie evidence; the repatriation of Israelis who were convicted abroad to serve their sentences; The prohibition on extraditing a person to a country where he faces the death penalty, unless he was punished in the same way in Israel. These principles are also enshrined in extradition treaties, including in the treaty between the United States and Israel (see articles 5 and-6 of the Convention).
The principle of fairness of the proceeding does not contradict the other purposes of the Extradition Law. He integrates into them. It alleviates the concern that a defendant will be exposed to a legal system in which he is not accustomed. It serves as a counterweight to the principle of nationalism in prosecution. In this regard, the words of MK S. Weiss in the debate on the first reading of the 1999 Amendment to the Extradition Law are appropriate:
"The principle... That Israel is a member of the family of civilized and democratic nations is a good principle, these laws meet and complement Israeli tradition and law. We will extradite criminals to political-legal cultures where they will receive a just trial. Reciprocatingly, they will turn themselves in to us, and here humanity and the fact that we are members of the international human community take precedence over the national principle, because we assume that justice will be done in both places in the face of crime, a just trial and a procedure of justice" (D.C. 173 (5758) 7086 of May 12, 1998).
- Legal systems may take different paths when it comes to achieving the same goal. The same is true of the right to a fair trial. This right is recognized in most democratic countries, but various means may be used to realize it. A certain state may guarantee it by means of certain procedural rights and guarantees, and an anonymous state may adopt other rights and guarantees into its laws. Against this background, it is clear that the argument that a difference between legal systems, in and of itself, violates the right to a fair trial and therefore justifies refraining from extradition, cannot be accepted. Legal systems that maintain an absolute procedural and substantive identity have not yet been found, even in these countries with a common legal tradition.
However, it is possible that gaps between one legal system and another as to the nature of the guarantees used to ensure the fairness of the proceeding will be so thorough and unbridgeable that they will lead to the conclusion that the legal system in the requesting country should not be viewed as allowing a fair trial. Just as the very difference does not justify a sweeping conclusion regarding non-extradition, so too it should not be relied upon to deny the power to transfer the extradition under the criticism (cf. the words of Justice Adiel in the Maimon-Cohen case [45], at p. 66).
- What, then, is the nature of the difference between legal systems, which would justify the conclusion that a person should not be exposed to the laws and legal system of a requesting state? The answer to this question requires two separate stages of the exam: In the first stage The court must examine the nature of the violation of the right to due process that characterizes, as claimed, the law of the requesting state. This is in light of the fundamental principles and in-depth perceptions used in Israeli law in examining the question of what is a fair trial and what are the fundamental rights and guarantees without which-According to our view, its existence is impossible. In the second stage It is necessary to examine how the alleged infringement fits into the system of criminal checks maintained by the legal system in the requesting country. The claim that a particular right or guarantee is not realized or that its realization is defective is not sufficient to establish a conclusion regarding the-The existence of a fair trial, but it must be proven that in the entirety of the rights and guarantees that the foreign method provides in favor of criminal defenses, there are no elements that can "offset" the alleged harm and ensure that the right to a fair trial will be preserved in the general consideration. Insist on this Judge Adiel, referring to the claim that the right to a fair trial was violated because a foreign legal system did not allow access to the prosecution's evidence:
"... In the absence of a comprehensive familiarity with the criminal procedure practiced in the [foreigner] legal system...We are not prepared to determine, on the basis of the material before us alone, that the legal system... as a whole, it will not allow the petitioner a fair trial. In order to reach such a conclusion, it is necessary to examine the entire system, with its principles and rules, in order to see what are the balances between the rights of the defendant and the guarantees to prove his innocence and the powers and advantages given to the prosecution. An examination of only one institution from within the legal system does not allow us to reach such a far-reaching conclusion..." (Parashat Maimon-Cohen [45], at p. 68; my emphases - A. A. 30).