Attorney-General v Kamiar

CourtSupreme Court (Israel)
Date09 June 1968
Israel, Jerusalem District Court.
Supreme Court sitting as the High Court of Justice.
Jerusalem District Court.
Supreme Court.
Supreme Court sitting as the Court of Criminal Appeals.

(Baker, President.)

(Berinson, Witkon and Halevi JJ.)

(A. F. Landau J).

(Agranat, President.)

(Agranat, President; M. Landau, Berinson, Cohen and Halevi JJ.)

The Attorney-General of Israel

The individual in international law Extradition Conditions of Extraditable crimes Evidence What must be proved What evidence is admissible Purpose of authentication of evidence Double criminality The law of Israel.

Treaties Conclusion and operation of Constitutional limitations Which organ of State of Israel authorized to conclude treaties The law of Israel.

Treaties Conclusion and operation of Ratification Entry into force Whether Israel-Switzerland Extradition Convention, 1958, in force Whether statement of Israel Ministry for Foreign Affairs conclusive Whether determined by international law Whether determined by Israeli constitutional law Whether determined by Israeli law of contract Signature Full powers Whether Israeli Ambassador possessing full powers signed by Minister for Foreign Affairs authorized to sign treaty Ratification by Israeli Government Whether authorized Ostensible authority Estoppel Intention of Parties Meaning of term ratification Relevance of statement of practice in ratification of treaties published in United Nations Legislative Series Which organ of State of Israel authorized to conclude and ratify treaties Whether ratification would cure defect in signature The law of Israel.

Summary: The facts.On 31 December 1958 the Ambassador of Israel to Switzerland signed in the name of the Israeli Government an Extradition Convention, on the basis of an instrument of full powers signed by the Israeli Minister for Foreign Affairs.1 The Convention provided that it was subject to ratification and would enter into force on the date of the exchange of the instruments of ratification. On 25 November 1959 the Israeli Minister for Foreign Affairs signed an instrument of ratification declaring that the Government of Israel ratines the Convention on Extradition between the Government of the State of Israel and the Swiss Federal Council.2 The Israeli Ambassador signed a protocol on the exchange of the instruments of ratification of the Convention on 15 December 1959.3 A Notice emanating from the Israeli Ministry for Foreign Affairs was published in the Israeli

State Records on 21 January 1960 announcing the signature of the Extradition Convention and that the Convention had entered into force on 15 December 1959. The Convention was registered by Israel with the United Nations Secretariat on 28 October 1960.1

Kamiar was accused by the Swiss authorities of fraud and his extradition from Israel was sought on the basis of the Extradition Convention of 1958. Extradition proceedings were instituted in the Jerusalem District Court on 14 January 1965. Kamiar objected that the Extradition Convention was not legally in force, on the grounds that according to the law of Israel the Minister for Foreign Affairs was not empowered to authorize the Israeli Ambassador to sign the Convention, and that the Government was not empowered to ratify it, only the Knesset [Parliament] being empowered to ratify treaties. The Attorney-General contended that the Government was empowered to sign and ratify treaties since it had acquired any power vested under the law in the King of England [Law and Administration Ordinance of 1948], which included, under, inter alia, the Mandate for Palestine, the power to sign and ratify treaties in the name of Palestine.

Held (by the Jersualem District Court on 21 April 1966): that Kamiar's contentions must be dismissed and that the Convention had entered into force on 15 December 1959. The Government was authorized to sign and to ratify the Convention; the Ambassador was not authorized to sign it, but the subsequent ratification validated the treaty.

The Court found that although the Transition Law of 1949 provided that The President shall sign treaties which have been ratified by the Knesset, there was no specific provision in the law of Israel determining who was empowered to sign treaties or to ratify them. However, the Court accepted the contention of the Attorney-General that the Government was empowered to sign and ratify treaties with foreign States since it had, under the Law and Administration Ordinance of 1948, acquired any power vested under the law in the King of England. This included the power to sign and ratify treaties because (i) this power was conferred by English common law in respect of foreign countries under the jurisdiction of the King as a result of cession or conquest; (ii) the British Foreign Jurisdiction Act, 1890, provided that it should be lawful for the King of England to hold, exercise and enjoy any jurisdiction which Her [His] Majesty has now or may at any time hereafter have within a foreign country in the same and as ample a manner as if Her [His] Majesty had acquired that jurisdiction by the cession or conquest of territory (Section 1); (iii) the Mandate for Palestine, Article 12, entrusted the Mandatory with control of the foreign relations of Palestine, and other articles made provision for the conclusion of treaties by the King of England with respect to PalestineArticle 10 provided for the making of extradition agreements relating to Palestine, and for the application to Palestine of extradition agreements in force to which the Mandatory was a party. Foreign relations included the conclusion of treaties. Moreover, both the Foreign Jurisdiction Act and the Mandate must be regarded as part of the law of Palestine.

The Law and Administration Ordinance of 1948 provided for the conferment of the powers of the Government only upon the Prime Minister and upon any of the Ministers. A notice under that Ordinance, of 1951, purported to confer the power to sign treaties on the Minister for Foreign Affairs and whomsoever he shall so authorize, and under the Interpretation Ordinance the High Commissioner was entitled, in general, to depute persons to exercise powers and duties conferred upon him. In the view of the Court, however, only the powers formerly belonging to the High Commissioner, which did not include the power to conclude extradition treaties, in general, were susceptible

of delegation. However, the subsequent ratification of the treaty, whether or not the Government was aware or not that the Ambassador was authorized to sign the treaty, validated it

Kamiar then brought proceedings in the Supreme Court sitting as the High Court of Justice for an order calling upon the Attorney-General to discontinue the extradition proceedings, and an order nisi was granted. The Attorney-General raised an objection on the ground that the purpose of the action was to bring before the Supreme Court one of the questions discussed in the Court below, i.e. to bring about an appeal against that decision at a stage in which appeal was not admissible.

Held: that the contentions of the Attorney-General must be upheld, and the order nisi vacated.

In the subsequent proceedings before the Jerusalem District Court, Kamiar raised certain objections to the admissibility, in terms of the Extradition Convention, of certain evidence, and also contended that the double criminality rule included in the Convention was not satisfied.

The relevant provisions of the Convention are the following:

Article 6:

(1) The request for extradition shall be transmitted through the diplomatic channel.

(2) It shall be accompanied by the following documents:

1. The judgment of conviction or the warrant of arrest, or other order having the same effect and issued by a court or any other authority which the Ministry of Justice of the requesting State certifies to be a competent authority for the purpose;

2. A statement of the offence for which extradition is requested indicating the time, the place and pertinent facts of its commission, and its legal description;

3. The text of the applicable criminal law provisions in the requesting State;

4. Particulars or documents necessary to establish the identity and nationality of the person claimed; and

5. In the case of a person against whom proceedings are pending, the statements of witnesses or declarations of experts made on oath or otherwise to a judge or to any other authority which the Ministry of Justice of the requesting State certifies to be a competent authority for the purpose.

(3) In the case referred to in paragraph (2), sub-paragraph 5, above, the Contracting States reserve the right not to grant extradition unless the existing evidence would be sufficient to justify committal for trial if the offence had been committed in the territory of the requested State.

(4) The originals or authenticated or other copies of the accompanying documents mentioned in paragraph (2), sub-paragraphs 1, 3, 4 and 5 above, shall be accepted as valid evidence in the procedure for examining the request for extradition, if they bear the signature of, or are accompanied by an attestation from, a judge, competent legal officer, or official of the State where they were made and bear the official seal of the Ministry of Justice.

Article 9:

If the requested State needs additional information or evidence in order to ascertain that the conditions required by this Convention are satisfied, it shall so inform the requesting State before refusing the request and may fix a time-limit for rectification. Such time-limit shall not exceed forty-five days if the person claimed is being held for extradition.

Article 2 of the Convention provides that the offence in respect of which the extradition is requested shall be punishable under the law of both States and extraditable under the law of the State from which extradition is requested.

The documentary evidence before the Court was extensive, and fell into the following...

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