This is the case with regard to the realization of the public interest in the extradition of the appellant, and now to the harm which, as claimed, this interest will be harmed if the extradition is realized. In his first argument that extradition would violate his right to a fair trial, I did not find any substance. It is worth mentioning, first of all, that it is well known that the procedure
American law upholds the principle of fairness, with all the substantive and procedural rights deriving from it. This principle is explicitly enshrined in the U.S. Constitution (in the Fifth, Sixth, and Fourteenth Amendments), and it is re-reflected in the case law of the courts in the United States.
Second, even if I assume, as the appellant's counsel argued, that there are indeed differences between the procedural and evidentiary criminal law in the United States and that which is customary in Israel, I do not believe that this difference is so substantial and profound that it negates the fair character of the legal proceedings conducted there. The nature of an act of extradition involves a foreign legal system, with its special rules of law. It is doubtful that there will be cases in which there will be absolute identification between the laws of the requesting state and those of the requested state. A difference in the rules of evidence and criminal procedure is not sufficient in itself for the purpose of determining that the right to a fair trial has been violated.
As I have argued above, the question of fairness must be examined against the background of foreign criminal law as a whole, and taking into account the overall array of constitutional balances in it. An examination of the legal system in force in the United States reveals, inter alia, that defendants enjoy the presumption of innocence, that they have the right to remain silent and the right to self-incrimination, that they have the right to be represented by an attorney, that they have the right to bring evidence on their behalf and to cross-examine those who testify against them in cross-examination, and that, as stated, they enjoy the general constitutional right to a fair trial. This is sufficient to ensure that the appellant will not be exposed to a proceeding that is not of this kind.
- The claim should be rejected even insofar as it bases itself on the alleged limitation in the scope of the right to inspect investigative material. True, the defendant has a fundamental right to review the interrogation material used against him. This is "... A pillar of the right to a fair trial..." (Words Judge Arbel In various criminal applications 3152/05 Ben Yaish v. State of Israel [61], 10.5.2005). However, it is not enough to claim that "the scope of the obligation to disclose the investigative material in the United States is limited compared to that in Israel." It must be shown how this limited scope is likely to harm the defendant's defense. This was not done by the appellant, whose extradition request, as well as other proceedings that took place, disclosed to him in great detail the list of witnesses and the evidence against him, including their affidavits that were submitted, the agreement of the state witnesses that was made, transcripts of telephone conversations used as evidence in the affair, and the transcript of the testimony of the witness Roash in the trial held in the United States. What was the investigative material that was denied to him, this was not specified by the appellant.
- Finally, even the difficulty in summoning defense witnesses does not substantiate the claim that the fairness of the proceeding was violated. This issue was clarified before the trial court. According to his decision,
The respondent's counsel inquired with the United States Attorney General's Office what options are available to the appellant, under American law, to testify these witnesses. In the reply that was accepted, and which was made available for our consideration in the framework of the main arguments on behalf of the respondent, it was clarified that the Sixth Amendment to the United States Constitution grants the defendants the right to compel others to testify at their trial. This is the case, naturally, with regard to witnesses located within the United States, but it was argued that if the direct testimony of witnesses on behalf of the appellant is not helped, he will be able to back up their testimony by means of a forensic interrogation or by their testimony on a closed television system. This answer satisfied the opinion of the trial court, and it also assumes my own opinion. There is no reason why the right to access evidence and the effective ability to testify witnesses, which is an integral part of a defendant's right to a fair trial in the United States, and which the courts there are ordered to adhere to, should be denied to the appellant.
- A similar law will be found to the appellant's arguments regarding Israel's relinquishment of its sovereignty, which is involved in the act of extradition. As mentioned above, an island-The application of local law does not mean, in any circumstance, a waiver of sovereignty. In the circumstances before us, the extradition of the appellant is consistent with the public interest. It is an expression of the purposes that underlie the institution of extradition. It is done not out of coercion or succumb to pressure, but on the basis of the position of the prosecution and the Israeli courts. It is only a clear expression of Israel's sovereignty, and to the extent that it meets the basis of reciprocity in its relations with the United States, it can be expected that it will only strengthen the principle of sovereignty when a similar request is addressed by Israel to the legal authorities in the United States.
- All that has been said so far consolidates the public interest that supports extradition. This interest also passes the constitutional test. My view is that all four cumulative conditions of Section 8 Basic Law: Human Dignity and Liberty Exist in the Extradition of the Appellant. Of these, I saw room to expand on the last two - The proper purpose and the measure that does not exceed what is required. It is clear at the outset that after it was found to meet all the rationales for the extradition law, and it was done within the framework of the discretion given to the prosecution authorities and without extraneous reasons being used as its basis, the act of extradition satisfies the demand of The Proper Purpose. The existence of prima facie evidence against the appellant, at the level necessary for him to be declared extraditable by the District Court, also contributes to this conclusion.
- As to proportionality: First, it cannot be argued that the extradition of the appellant to the United States has nothing to do with the purposes of the The Extradition Law. There is no doubt that there is A Relationship of Compatibility Between them and
The means chosen to be used in their realization. The requirement of rational connection is therefore met. The second sub-test - the means with the least harm - requires, as it will be recalled, that of all the means that can achieve the desired purpose, the one whose infringement of the basic right is the least should be adopted. And now, when we are dealing with extradition, we are not talking about a "ladder" or a "staircase", over which any progress intensifies the violation of the right (Civil Appeal 6821/93 United Mizrahi Bank in Tax Appeal v. Migdal Kfar Cooperative [62], at p. 468 and High Court of Justice 1715/97 Association of Investment Managers in Israel v. Minister of Finance [63], at p.). After all, it is not possible to speak in partial surrender. Moreover, it seems that in this context we should not even speak of conditional extradition under conditions that reduce the severity of the injury. These conditions were not used in any case at the stage of formulating the public interest under the Extradition Law, and without their existence, the extradition would not have reached the stage of constitutional examination at all. It is therefore difficult to imagine a means of achieving the purposes that I have discussed, and its harm is less than the harm inherent in the act of extradition according to the law. Non-extradition is not, of course, one of these means, since, as explained, it is not used to achieve these purposes.