Arar v Governor of Tel Mond Prison

• Jurisdiction: Israel
• Court: Supreme Court (Israel)
• Date: 25 April 1952
• Docket Number: Case No. 30

Israel, Supreme Court, sitting as the High Court of Justice.

Case No. 30

Arar

and

Governor of Tel Mond Prison.

State Succession — Succession with regard to Punishment for Criminal Offences — The Law of Palestine.

The Facts.—In the year 1947, at the time of the British Mandate over Palestine, the applicant had been convicted by the Court of Criminal Assizes of Palestine, sitting at Nablus, on a charge of murder, and had been condemned to death. His appeal was rejected in the same year by the Court of Criminal Appeals. The sentence had not been carried out by the time the Mandate came to an end. The applicant had escaped from Acre prison, in which he had been confined, but he was recaptured by the Israel police after the establishment of the State of Israel, and re-imprisoned. The President of Israel commuted the death sentence to one of fifteen years' imprisonment, and at the time of this application the applicant was serving that sentence in prison. The present application was for an order of habeas corpus on the ground that his continued imprisonment was unlawful. The applicant argued that since the original judgment had been given by the Court at Nablus in respect of an offence which had been committed in an Arab village which did not subsequently fall within the territory of the State of Israel, the State of Israel could not continue to act according to that judicial sentence. After the order nisi had been issued, the Court Rules (Adaptation Criminal Proceedings) Order, 1952, was promulgated. Regulation 2 thereof provided that a judgment which had been given in a criminal cause by a Court in Palestine after May 14, 1948, and which had not yet been executed, would be excuted as if it had been rendered by a Court in Israel. A “Court in Palestine” is defined, in Regulation I, as a Court which functioned in the territory under the Mandate for Palestine outside the area over which the law of Israel now applies.

Held: that the order nisi must be discharged. The continued...