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Court observers scuttle Israeli judge's attempt to hold a closed doors hearing in protesters' criminal prosecution

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Joseph Zernik
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In the criminal prosecution of children and parents' rights activists Lori Shem-Tov and Moti Leybel, Judge Benny Sagi was caught in multiple incidents of fraud and deceit, including attempt to unlawfully conduct a closed doors hearing - serious violation of a fundamental Human Rights -- fair and public hearing.

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Figure 1. Lori Shem-Tov and Moti Leybel are key activists in protest against corruption of the justice and welfare systems and the unbearably easy removal of children from their parents (particularly poor parents), which created an industry of adoptions and highly paid foster parents. Shem-Tov, Leybel and their former attorney Zvi Zer now face criminal prosecution, which may leave them behind bars for years.

OccupyTLV, May 04 -- An unprecedented incident took place today in the Tel-Aviv District Court today -- the public defied Court Guards' demand to leave the courtroom and eventually secured an open court criminal prosecution hearing for jailed social protest activists Lori Shem-Tov and Moti Leybel, and their former attorney Zvi Zer (prosecuted with them). All three have been detained for almost 2 months.

Media campaign by Israel Police in the days following their arrest, referred to them as an "internet terror group" and claimed that they had engaged in "extortion" (notably missing from Israeli English media editions). [ii] On April 18, 2017, State Prosecution entered the indictment. Media published indictment records, while implying at the same time that the entire care was conducted under seal with a gag order prohibiting its coverage by media...

Shem-Tov and Leybel's primary protest is against corruption of the justice and welfare systems, which permits unbearably easy removal of children from their parents (particularly poor parents), and which generated a highly-paid foster family industry and a market for adoptions. The final incidents, which triggered the arrests, were small street protests near the homes of two judges. [iii] With a growing number of protests being held against justice, welfare and banking system officers in recent years, the State has started arresting and criminally prosecuting activists. [iv]

Open court, or a closed doors hearing?

The case was listed as a normal open court hearing by Judge Benny Sagi of the Tel-Aviv District Court. However, around 10:45, prior to the Judge's entry, Court Guard Matan Rahmani announced a closed doors hearing and demanded that the public -- about 20 supporters and family members -- leave the room. In an unprecedented incident, the public defied the Court Guards arguing that there was no lawful decision in the court file to such effect. Rahmani again demanded that people leave the room, but nobody complied. Finally, Rahmani consulted with the court assistant, there was a phone call to someone, the public stayed in the courtroom, and the hearing was after all conducted in open court.

At the end of the hearing, Rahmani was asked, who instructed him to announce the closed doors hearing. First, Rahmani claimed that he had been instructed by the Prosecutor -- an unreasonable explanation. Shortly afterwards, Mr Shay Shmarel, who introduced himself as the Court Guards Shift Commander, interfered and stated that "information was received of a closed doors hearing". Finally, Shmarel admitted that the false instruction came from Judge Benny Sagi himself.

Fake indictment served on Defendants in jail

Later, during the hearing, Mr Moshe Halevi asked Judge Sagi from the public benches to provide Defendant Lori Shem-Tov a copy of the indictment that was entered in Net-HaMishpat -- case management system of the Court. Halevi had earlier filed a request to the same effect on behalf of Shem-Tov, who is unrepresented and unable to file for herself. Judge Sagi demanded to inspect the papers, and approved their delivery to Shem-Tov. Shem-Tov briefly inspected the papers and immediately stated that they were different than the indictment record, which had been served on her in jail by the Prosecution. Shem-Tov first stated the difference in total page count. Here, Judge Sagi blundered even deeper. He tried to argue, "it is impossible that there are two different indictments", and "difference in page count in itself does not mean that the records are different" (implying differences in formatting). However, the request, which had been earlier filed by Halevi included a table summary of the material differences between the two indictment records" In short, if earlier one could assume that the fraud on the Defendants was perpetrated by the Prosecution alone, conduct of Judge Sagi in open court established him as partner in such conduct. The fake indictment record, which was served on the Defendants was the same which was published by media. It was obviously an invalid, unauthentic court record: It was unsigned, showed neither a court file number nor a "Filed" stamp, among various obvious cardinal defects. Regardless, such records are routinely provided by the State Prosecution to media and used by legal correspondents without doubting their truthfulness"

Difficulties in designating a Defense Counsel

The issue of designating Defense Counsel was again a key issue in today's hearing. In the previous court hearing, representative of the Public Defender's office stated that the Public Defender's office desired not to be involved in this case, due to "the nature of the indictment". Judge Sagi lost his temper, and ordered the Public Defender's office to designate Counsel by today's hearing. However, today, the Public Defender's office again stated that no Counsel had been designated, since they could not find anybody, who agreed to accept the case" Judge Sagi gave the Public Defender's office extension of additional 10 days"

Was Arraignment duly executed?

According to the entries in Case Calendar in Net-HaMishpat, Arraignment was executed on April 18, 2017. However, on that date, the Defendants have not even seen the fake indictment record. The case calendar now has no Arraignment scheduled for a future date, although it is obvious that today was the first time that the Defendants ever saw the authentic indictment record...

Inspection of the evidence

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Dr Zernik's core research pertains to e-government and its significance for Human Rights and Civil Society.

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