Attorney-General v Kane and Baron

CourtSupreme Court (Israel)
Israel, Supreme Court sitting as the Court of Civil Appeals.

(Ollshan, Silberg and Zussman JJ.)

Kane and Baron.

Treaties — Operation of — Interpretation of Municipal Statute in the Light of Relevant International Coventions — International Convention on Declaration of Death of Missing Persons, 1951 — Municipal Law Implementing International Convention — The Law of Israel.

The Facts.—After Israel had become a party to the International Convention on Declaration of Death of Missing Persons, concluded at New York on April 6, 1950, a domestic law—the Declarations of Death Law, 19521—was passed. The short point in this case—concerning which the lower Courts had at various times rendered conflicting opinions—was whether the Law of 1952 adds to, or derogates from, the law as previously in force and relating to evidence of death. In this case the Court below had decided that the Law did not provide an exclusive code of evidence for these questions, and the Attorney-General appealed against that decision.

Held: that the appeal must be dismissed. The Law of 1952 and the Convention were each to be interpreted in the light of the special situation of the Jews following the death or disappearance of more than six million Jews during the Second World War.

The Court said (per Silberg J.): “In the course of the proceedings before us, Mr. Gluckman, for the appellant, made many interesting points as to the practical purpose of the Law, its exclusive character, and its relation to the international Convention on which it is based, but in my opinion—to which Mr. Gluckman eventually agreed—the debate may be confined to one single point, viz., whether the provisions of the said Law, even admitting its exclusive character, apply also to cases in which the question of the death of the missing person is merely incidental, that is to say, is a question whose determination is merely a prerequisite to a decision on another matter.2 Mr. Gluckman agrees that in the case of an application for a succession order—as distinct from an application for a declaration of death—the question of the death of the deceased (and of his other or possible heirs) is incidental, since the Court established the death merely for the purpose of the distribution of the estate or, more exactly, of the estate situated within the country; he maintains, however, that the exclusivity of the Law extends also to these cases,

and that, since its promulgation, the death of a missing person...

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