Hackstetter v State of Israel

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Supreme Court sitting as a Court of Criminal Appeal
Hackstetter
and
State of Israel

The individual in international law Extradition Conditions of Extraditable crimes European Convention on Extradition 1957 Double criminality (Article 2) Procedure (Article 22) Retroactive effect of extradition treaties Austria-Israel Extradition Treaty 1961 Effect of amnesty or pardon in requested state Universal Declaration of Human Rights The law of Israel

Summary: The facts.On appeal against a decision that he was liable to extradition, the appellant made three submissions: that the European Convention on Extradition of 13 December 1957 was not retroactive in its effect; that the offences of which he was accused having been committed before the Convention came into force, the Israel Amnesty Law of 1967 applied to those offences; and that the evidence before the Court had not been properly authenticated, the testimony not having been given either on oath or under solemn affirmation.

Held: The appeal must be dismissed. (1) When the Convention was drawn up, it was a clear rule of international law and practice that, in the absence of any provision to the contrary, extradition treaties had retroactive effect. Under the Israel Extradition Law of 1954, the offence involved must be an offence according to the law of both the requesting and requested States when it was committed; the liability to stand trial was not affected by the fact that the Convention came into force after the offences in question were committed. There was nothing in either the Convention or the Law which excluded offences committed before the former took effect. (2) Neither the Convention nor the Law contained any provision under which a pardon or remission in the requested State relieved from extradition. The Amnesty Law operated only in respect of offences committed in Israel. (3) Israel's reservation to Article 22 of the Convention ensured the admissibility of evidence not taken on oath or under solemn affirmation.

The following is the text of the judgment:

1. Application has been made by Austria for the extradition of the appellant to stand trial there for offences which, according to the charge, he committed in that country during the years 19621964. By virtue of his powers under section 3 of the Extradition Law 1954, the Minister of Justice directed that the appellant be brought before a District Court in order to determine whether he is subject to extradition. The appellant is appealing against the decision of the learned Judge that he is indeed subject to extradition. Since 26 April 1971 the appellant has been in prison in consequence of the application for extradition.

2. There is no dispute that the offences with which the appellant is charged in Austria are extradition offences within the meaning of section 2 (2) of the Extradition Law, and that an agreement exists between Austria and Israel which provides for reciprocity in the extradition of criminals, as required by section 2 (1), that agreement being the European Convention on Extradition (hereinafter called the European Convention) to which both Austria and Israel have acceded and which, so far as Israel is concerned, must be read subject to the latter's reservations.

3. The first submission put by the appellant (in point of interest and in point of the order in which it was made) is that he is not extraditable by reason of the fact that the European Convention had not yet come into effect at the date when, according to the charge, the extradition offences were committed. His extradition for an offence committed when the extradition agreement was not yet in force is, according to his argument, a serious infringement of those fundamental rights that obtain in all enlightened countries, which will only put a person upon criminal trial for acts which were criminal when they were committed. And if one were to reply that the appellant's acts were criminal when committed both according to the law of the place where they were committed, Austria, and according to Israel law, the appellant says that his right to reside free and at large in Israel can only be taken from him under a law that was in force when he committed the act which serves as a ground for denying him freedom. In other words, technically in law the European Convention possesses no retroactive effect and does not extend to extradition offences perpetrated before it came into force.

The appellant does not dispute that in the years during which the offences with which he is charged were committed, a treaty was effective between Austria and Israel for the extradition of criminals, the Treaty signed in Vienna on 10 October 1961. He argues, however, that this treaty was abrogated by virtue of the provisions of Article 26 of the European Convention, in the following terms:

This Convention shall, in respect of those countries to which it applies, abrogate the provisions of any treaties, conventions or bi-lateral agreements governing mutual assistance in criminal matters between any two Contracting Parties.

(The word abrogate is a translation of the word abroge in the French text of the European Convention, whereas the English textwhich is equally authoritative with the French texthas supersede, the meaning of which is...

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