Beruflich Dokumente
Kultur Dokumente
the Israeli Courts’ Case Management System
amount to “framing” and unlawful attempt to topple a
Abstract—Instant case study is based on ongoing democratically elected prime minister [4,5]. On the other
prosecution of Israeli Prime Minister Netanyahu for bribery, hand, protesters have taken to the streets for months,
fraud and breach of trust. The case has generated demanding Netanyahu’s immediate resignation and further
unprecedented circumstances, which have been described as a investigations of alleged corruption affairs [6]. Confidence in
constitutional crisis, social disintegration, and a trial of the conduct of the trial court is limited: A renowned media
justice system itself. The court case has also provided personality, Amit Segal, openly advocates conduct of a
unprecedented documentation of lack of validity and integrity “Kuntz” in this trial [7]. And recently retired State Attorney
in design and operation of Net-HaMishpat – the court’s case Shai Nitzan, provided the opinion that the trial might not take
management system. Vast majority of the decisions in the case place at all [8]. Netanyahu’s prosecution is only the latest in a
were kept inaccessible to the public, moreover, the trial court series of high level government corruption scandals in Israel
judges denied a request to inspect and to copy such decisions, over the past decade, including serious corruption scandals of
reasoning the decisions were “post-it” decisions (similar to
law and justice authorities [9-12]. The current report examines
Outlook “sticky notes”), which were of “technical” but not
the role of invalid case management systems of the courts in
“substantive” nature. In the first appeal, judgment of the
Supreme Court ruled that the trial court must allow the undermining the rule of law.
decisions to be inspected. It was hailed as an “historic event in
the our justice system”. Permanent changes in Net-HaMishpat II.STATE OF ISRAEL V NETANYAHU: DENIAL OF ACCESS TO
system have followed the judgment in the first appeal. The INSPECT COURT DECISIONS
integrity of such recent changes in the system are critically Routine inspection of the online docket of State of Israel v
reviewed. The manner in which the trial court purported to Netanyahu et al (67104-01-20) in Net-HaMishpat case
execute the Supreme Court judgment is reviewed as well. It management/public access system in June 2020 revealed that
would be deemed by a reasonable person a “fabrication” – only 16 decisions were accessible in the public docket, while
invalid service of an invalid court record. Moreover, the trial the latest request/motion numbers were in the 40s. It became
court denied access to inspect the entries of such purported obvious that in a case, which was defined “Open to the
court record and its purported service in the Net-HaMishpat Public”, the majority of court decisions had been excluded
system. A second appeal is now pending before the Supreme from public access. Consequently, request to inspect all
Court, asking: Is a person, who receives a dubious service of a decisions was filed with the Jerusalem District Court [13].
dubious record from the court, permitted to ascertain the
authenticity, validity and authority of such record by
The request was denied in the June 14, 2020 decision by the
inspecting the corresponding data entries in the court’s case
three-judge panel, reasoning: “Pertaining to inspection of
management system? Invalidity of IT systems in the Israeli
courts has been repeatedly reported over the past decade. The court decisions, the rule concerning “Public Hearing”
implementation of such systems was claimed to be an enabler applies… therefore, requesters and others are permitted to
of serious deterioration in integrity of the justice system. Case inspect court decisions, which are periodically published. Yet,
management systems of the courts present a unique example one should distinguish between material decisions, where the
of “Code is Law”, given their utmost significance in the duty to publish applies, and technical decisions, typically
safeguard of human rights and democratic institutions. Human rendered as post-it decisions, where there is no publication
Rights activists and IT experts should assume a voluntary duty duty” [14]. Such reasoning had no foundation in the law.
to monitor such systems.
The June 14, 2020 decision was issued in a fully structured
Keywords— case management systems, courts, human decision format (Figure 1). Key features of such format are: a)
rights, democratic institutions Coat of arms of the State of Israel and name of the Jerusalem
District Court in the letterhead, b) title of the court record -
I. INTRODUCTION “Decision” - in bold, underline, following listing of parties,
b)
Fig. 5 State of Israel v Netanyahu et al (67104-01-20) in the
Jerusalem District Court: a) pages 1 and 5 of the November 01, 2020
Notice by the Clerk. The notice is a fully structured court record,
showing the coat of arms of the State of Israel and the name of the
Jerusalem District Court on its letterhead, and showing the name of
of Nurit Ringler-Cohen, Department Director and her “graphic
signature” at its end. b) Docket entry corresponding to the November
01, 2020 Notice by the Clerk, under no. 85 – second line from the
top.
Fig. 4 State of Israel v Netanyahu et al (67104-01-20) in the
Jerusalem District Court: November 17, 2020 “post-it” decision, VI. SECOND SUPREME COURT APPEAL
pasted on top of the Requester of Inspection’s “request for rendering
a decision in re: notice of inspection (no. 85)”. The text says: “On its In late November 2020, a second appeal was filed in the Supreme
face, request no. 85 was addressed in the November 01, 2020 Notice Court [23]. The legal question in the second appeal is: Is a party, who
by the Clerk”. The lower-left corner bears the newly introduced note: receives dubious service of a dubious record from the court,
“***digitally signed***”. permitted to inspect the registration data of such document in Net-
HaMishpat system, in order to distinguish and ascertain, whether it is
an authentic, valid court record, or merely an invalid “draft”, or
“fabrication”?
The second appeal is still pending.
a)
Fig. 6. State of Israel v Netanyahu et al (67104-01-20) in the 2(b) provides: “Any person is permitted to inspect decisions,
Jerusalem District Court: November 17, 2020 decision by Judge which are not lawfully prohibited for publication”. And
Rivca Friedman-Feldman (corresponding to the “post-it” decision, Regulation 3 provides: “A party is permitted, following the
shown in Figure 4, above, as it appears in the public access docket.
filing of Notice of Inspection to inspect the court file, to which
he is a party, unless it is prohibited for his inspection”.
VIII. DISCUSSION
The other main legal reference is the Supreme Court 2009
The abbreviated sequence of events in State of Israel v judgment at the end of a 12-year long petition – Association
Netanyahu, outlined about, may appear convoluted and for Civil Rights in Israel v Minister of Justice [26]. The
incredible. However, it is not at all unusual. judgment provides that in both cases – Regulation 2(b) and
A. Pending second appeal Regulation 3 – there is no requirement of filing a request in
the court. Therefore, both the plain language of the
The state of affairs in the second appeal is rather intractable:
Regulations and the 2009 judgment imply that the judges have
The Jerusalem District Court twice faxed to Requester of
no discretion in such matters, unless the corresponding court
Inspection the “September 22, 2020 document” through
materials are lawfully sealed.
manual fax machines, but not through electronic service in
In addition, Association for Civil Rights judgment states the
Net-HaMishpat (see below). The document itself appears
expectation that once Net-HaMishpat system is up and
invalid on its face. A letter by the Internal Auditor of the
running, most decisions of the courts would be publicly
Administration of Court as well as the October 26, 2020
accessible on an ongoing basis… Obviously, that is not the
decision by Judge Rivca Friedman-Feldman attempted to
case. A 2020 newspaper report claims that in about half of
persuade the Requester of Inspection that the “September 22,
Net-HaMishpat court files there are neither publicly accessible
2020 document” was an authentic and valid court record and
decisions nor judgments at all [27].
its service was authentic and valid service by the Court.
The Association for Civil Rights judgment further declares
However, the Jerusalem District Court denies Requester of
that the right to inspect is “a fundamental principle in any
Inspection access to inspect the corresponding data entries in
democratic regime… constitutional, supra-statutory...” and “a
Net-HaMishpat, if they exist at all... Fraud experts are likely to
central safeguard for competence of the justice system and
deem such state of affairs “Shell Game”, or “Confidence
public trust in it...”. The judgment cites a long list of similar
Trick” [24].
declarations in previous Supreme Court decisions over
Denying the appeal would deny a party’s right to inspect his
decades.
own court process – contradicting the written law, Supreme
Such concepts are not original. The right to inspect court
Court binding ruling, and “a fundamental principle in any
records is indeed considered a fundamental safeguard for
democratic regime” (see below). On the other hand,
integrity of the courts. In the Nixon tapes affair, the US
mandating the right of Requester of Inspection to inspect the
Supreme Court states: “It is clear that the courts of this
Net-HaMishpat data entries, pertaining “September 22, 2020
country recognize a general right to inspect and copy public
document”, is likely to demonstrate that no such data exist.
records and documents, including judicial records and
Therefore, in may cast the Administration of Courts Internal
documents. In contrast to the English practice... American
Auditor and Judge Friedman-Feldman as erroneous and/or
decisions generally do not condition enforcement of this right
misleading. It may further undermine public trust in the court
on a proprietary interest in the document or upon a need for it
process in State of Israel v Netanyahu – a case of
as evidence in a lawsuit. The interest necessary to support the
unprecedented constitutional, political and social significance.
issuance of a writ compelling access has been found, for
B. The right to inspect and Net-HaMishpat example, in the citizen's desire to keep a watchful eye on the
Over the past decade, numerous attempts to inspect court workings of public agencies... and in a newspaper publisher's
decisions in various court files in various Israeli courts intention to publish information concerning the operation of
indicate that the denial of access to inspect court decisions is government...” [28] Obviously, “watchful eye” on “workings
the rule, not the exception. The exception in this case was in of public agencies” and “operation of government” includes
fact the August 2020, Supreme Court Justice Ofer Grosskopf first and foremost the workings and operation of the courts
judgment, which mandated that the right to inspect be upheld. themselves.
The right to inspect differs in scope in various jurisdiction. C.The courts’ duty to maintain identifiable, authentic court
In the US, such right is perhaps the most comprehensive records
today, including all court decisions and all pleadings by the The significance of authentication and due service was
parties. The landmark US Supreme Court judgment in Nixon already established and elaborated in Jewish Halacha over
v Warner Communications (the Nixon tapes affair) provides 2000 year ago. The first Mishnah chapters in Gittin Tractate,
that such right originated in the English common law, and was as well as their elaboration in the Talmud are entirely
established inter alia in the 1st Amendment to the US dedicated to questions pertaining to authentication and due
Constitution – freedom of the press [25]. service of divorce documents [29].
In Israel, the right to inspect is much narrower. It is The significance of authentication and due service has been
established in the Regulation of Inspection (2003). Regulation recognized for centuries in the Western World as a
fundamental principle in the conduct of competent courts. the new practices, and the announcement by the
Such principle was established as a Constitutional norm Administration of Courts was vague relative to the question
almost 250 years ago in Article IV, Section 1 of the whether all post-it decisions, which are not lawfully prohibited
Constitution of the United States [30]. for publication would be included in the public dockets.
The identification of the “source”, or the “authority” has Moreover it remains unclear whether judges are permitted to
also been a central concept in the discourse of scholars of redact or alter the content of the post-it decisions, prior to
jurisprudence, relative to validity and effect of the justice publication, without any indication on the face of the
system. Such concepts are particularly evident in the thinking published document.
of the Positivist school, e.g., John Austin, Hans Kelsen and
E. Net-HaMishpat: Fully structured protocols, decisions
HLA Hart [31]. Such concepts are central to the thinking of
and judgments
the school of Procedural-Natural Law, e.g., Lon L Fuller [32].
The thinking of such scholars holds center stage in the Fully structured decision format is demonstrated in Figures
identification and recognition of a “Constitutional Assembly” 1 and 3, above. Such records purportedly show signatures of
and a “Constitution” by retired Supreme Court Presiding the judges, who rendered the decisions. However, the 2012
Justice Meir Shamgar and Supreme Court Presiding Justice Ombudsman of the Judiciary decision in the Judge Varda
Aharon Barak in Bank HaMizrahi judgment – which is often Alshech “fabricated protocols” affair, explicitly states that
considered the declaration of the “Constitutional Revolution” such “signatures” are “graphic signatures” - i.e., cut and paste
in the State of Israel [33]. signatures, placed by the secretarial staff, lacking any validity
Issuing legal and/or judicial records, whose source and at all [36]. The Ombudsman’s decision further states that all
authority are vague and ambiguous, fundamentally decision and judgment records in Net-HaMishpat are
undermines the competence, validity and integrity of the electronic records, and therefore, they are valid court records
justice system. only if electronically signed by the judges. Decisions and
In practice, the duty to maintain identifiable, authentic court judgments that are not electronically signed are merely invalid
records is also established in the Hague Apostille Convention “drafts” (Figure 7a).
(1961, 1965), to which Israel is a party [34]. Of note, the The Ombudsman’s decision further states that there is no
Human Rights Alert NGO submission to the UN Human way to distinguish in printouts and various electronic
Rights Council for the 2018 Universal Periodic Review renditions in Net-HaMishpat system between unsigned
documented the “fabrication” of Apostille documents by the “drafts” and valid court records…
Israeli courts. F. Net-HaMishpat: Dockets
D.Net-HaMishpat: Post-it decisions The Judge Varda Alshech “fabricated protocols” affair also
The “post-it” decision feature has been repeatedly singled demonstrates that invalid, unsigned,
out for criticism: First - “post-it” decision are universally “drafts”, or “fabricated” records, including protocols,
excluded from the public docket, and second – there is no decisions and judgments can be entered in Net-HaMishpat
detectable signature on them [35]. dockets (Figure 7b).
The new features in Net-HaMishpat, implemented The September 12, 2011 Judge Varda Alshech “fabricated
following the August 2020 Supreme Court judgment fail to fix protocols”, which included decisions and a judgment still
such defects, moreover, they generate new concerns: appear in the docket to this date.
a) The new format of the “post-it” decisions, as they appear State of Israel v Netanyahu, outlined above, also
in the internal docket (accessible to the court and the parties), demonstrates that in Net-HaMishpat a practice was created,
shown in Figure 4, above, includes the lower-left corner note: akin to the maintenance of double, triple, or quadruple books,
“***digitally signed***”. However, Israeli law does not without any clear foundation in the law.
recognize “digital signature” as a valid form or signature, only G.Net-HaMishpat: Service
“electronic signature” pursuant to the Electronic Signature Act The Ombudsman’s decision further determines that valid
(2001). Therefore, the note “***digitally signed***” makes no service in Net-HaMishpat system is only electronic service,
sense at all, and only increases the ambiguity. using the inherent “Service Application”. At the same time, the
b) The new format of the “post-it” decisions, as they appear Ombudsman’s decision documents that Net-HaMishpat system
in the external docket (accessible to the public at large) bears makes it possible to print out “drafts” and mail them or fax
the watermark “copy of a decision” (but not “true copy of the them – amounting to invalid service of invalid documents.
original”) and the red footnote disclaimer “*** In any case, In view of the above discussion, it is patently clear that the
the binding version is the one in the decision, signed by the “September 22, 2020 document” and its service couldn’t be
judge”. Combined, such features render the records explicitly deemed authentic service of an authentic court record.
neither authentic court records, nor authenticated copies of
court records. Therefore, their inclusion in the case
management system of the courts only contaminates the
database.
c) There is no valid legislation or promulgation relative to
provided great detail pertaining to the manner in which such
registers and records must be maintained. The mandatory
regulations were abolished with the promulgation of the Israeli
Regulations of the Office of the Clerk (2004) in anticipation of
the implementation of Net-HaMishpat. The Israeli Regulations
originally provided no details at all relative to the maintenance
of authentic court records. A 2005 amendment added
Regulation 6a, which only provides “the Chief Clerks of the
courts are authorized to certify that a copy of a court record is
a true copy of the original in the court file”.
However, today, the Chief Clerks fail to certify any records.
Instead, employees of unidentified or no authority typically
certify records. Moreover, in recent years, the Administration
of Court introduced a new feature in Net-HaMishpat –
machine-generated certification, which refers to no person’s
authority at all. Such machine-generated certification can seen
as the round, purple stamps in Figures 1, 3, 5 and 6, above.
The invalidity of such machine-generated certification is
demonstrated in Figure 6: The record itself is clearly not an
authentic court record, it bears the red, footnote disclaimer to
a) such effect. And yet, a “True Copy of the Original” machine-
generated certification is applied to it.
The absurdity of such machine-generated certification is
further demonstrated in the purported certification of a page,
saying only “scanned in error”, which is a fabrication in itself
– it was docketed in Net-HaMishpat as a February 06, 2020
Detainee release warrant (Figure 8a,b). Moreover, the derails
b)
in Net-HaMishpat falsely state that such fake warrant was
“signed” by Judge Anat Yahav on February 06, 2020 (Figure
8c).
c)
Fig. 7 Bank HaPoalim v State Receiver (1623-00) in the Tel-Aviv
District Court: a) September 12, 2011 Judge Varda Alshech decision,
which was one of the records at the center of the “fabricated
protocols” affair. The 2012 Ombudsman decision determines that the
Judge’s signature on the record was merely a “graphic signature”, and
the document had never been electronically signed, and was merely
an invalid “draft”. The lower part of the document shows
certification “True Copy of the Original” and the seal of the court.
The 2012 Ombudsman decision determines that such certification
was rendered with no authority by an incompetent secretarial
assistant. b) December 14, 2020 screen print of the docket still shows
the entries for the “fabricated” September 12, 2011 Judge Varda
Alshech “fabricated protocols”, which included decisions and a
judgment still appear in the docket to this date. c) December 14, 2020
screen print of docket details still shows that the September 12, 2011
Judge Varda Alshech “fabricated protocols” were “signed” by Judge
Alshech on September 12, 2011. The Ombudsman decision
determined that the “fabricated protocols” had never been signed, and
were merely invalid “drafts”.
H.Net-HaMishpat: Certification
The Israeli courts were originally established in 1922 under
the British Mandate for Palestine and fashioned after the
English common law courts. Regulation 4 of the British Rules
of Court (1936) promulgated the duty of the Chief Clerk for a)
maintenance of “registers and records” of the court, and
b)