Caselaw

Criminal Appeal 4596/05 Rosenstein v. State of Israel P.D. S(3) 353 - part 72

November 30, 2005
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From the totality of these circumstances, the conclusion arises that the act of conspiracy and its fruits, as a whole, are mainly harnessed by the United States, and there is no dispute that the center of gravity of the affair is in this country.  The geographical location from which the appellant operated, as alleged, - a location in which he now wishes to hang - is of no real importance.  The connection could have been tied anywhere in the world.  The fact that it is tied to Israel's territorial boundaries is, in the circumstances of the case before us, an almost neutral fact, which bears merely technical-formal significance.  At most, it was intended to play into the hands of the conspirators, who avoided physically exposing themselves to the risk of committing acts on American soil.  The American system therefore acquires it a preeminent status by virtue of the "rule of priority" in which we have spoken.  This is the "natural method" for ascertaining the appellant's guilt.  Decisive weight should be attributed to the injuries caused by the criminal activity.  Priority must be given to its clear interest in the realization of its sovereignty, a matter that is realized

By prosecuting those responsible for these abuses.  The practical expression of this is in granting the extradition request.

This is only sharpened in view of the nature of the acts attributed to the appellant.  The offenses in which, according to the claim, he took part are particularly serious.  This is the distribution of a very large amount of drugs, in a continuous and cyclical manner, which was interrupted only when the affair was exposed.  The criminal infrastructure increasingly resembled, as it persisted in its activity and gained experience, to an organized network, and its members became more specialized in their roles.  Actions have a clear international dimension.  They illustrate the necessity of international cooperation in the fight against crime.  In this case, the only satisfactory meaning of cooperation is that the hand does not jump in the face of the request of the United States.

  1. There is no denying the difficulty that extradition may pose to the appellant. He is not accustomed to the laws of the United States, the language is foreign to him, and there are some of his potential witnesses who are in Israel.  However, this difficulty must be regarded as inherent in many acts of extradition.  If the United States had not been the target of the acts, it is possible that the claim that he had the power to tip the scales against extradition would have fallen on attentive ears.  However, the suspicion is that the appellant wished to harvest his cows there, and thus exposed himself to the risk that the laws of the United States would seek to apply to him.  In this state of affairs, there is not the slightest doubt to permit the possibility that a person suspected of engaging in criminal offenses will be allowed to choose the law that is convenient for him.

Moreover, in weighing the evidentiary difficulty that the appellant faces and the counter-difficulty that non-extradition would impose on the prosecution parties, the hand of extradition, in the circumstances described, has the upper hand.  Thus, it is necessary not to allow a person to escape from the law, even if he is only presumed to be a suspect.  The evidentiary center of gravity in this case is in the United States.  The main witnesses are in the United States, and the reference is not only to the appellant's partners, as alleged, to the conspiracy, but also to the American law enforcement agencies.  Their testimony in Israel, including their cross-examination, although not impossible, entails great difficulties.  It is not at all certain that it will be possible to guarantee their safety here.  It therefore appears that the prosecution is facing a difficulty that exceeds the degree of harm that will be caused to the appellant because he will be forced to testify from a distance.

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