Waskerz v Attorney-General

CourtSupreme Court (Israel)
Israel, Supreme Court sitting as High Court of Justice.

(Agranat, Zussman and Landau JJ.)


International Law — Relation to Municipal Law — Treaties — Supremacy of Municipal Law — The Law of Israel.

Extradition — Conditions of — Depositions Not Sufficient by Local Law but Sufficient by Law of Requesting State — Evidence Not on Oath — Extradition Improperly Ordered — The Law of Israel.

The Facts.—This was an application for an order of habeas corpus after a competent Court had ordered the extradition of the petitioner to France. Extradition between Israel and France was governed by the Anglo-French Extradition Treaty of 1876, as brought into force between Israel and France by various exchanges of notes (see Israel Treaty Series, Nos. 31, 82 and 131). The depositions on which the extradition had been ordered were unsworn statements made in France, and the sole question to be decided was whether, under the (Palestine) Extradition Ordinance (Laws of Palestine, Ch. 56), that evidence was sufficient. By s. 12 of the Ordinance, a fugitive criminal could be extradited only on the basis of such evidence as would, according to the law of Israel, justify the committal for trial of the prisoner if the crime had been committed in Israel. The law of Israel required such evidence to be on oath. In the Extradition Treaty (Article 8) the French text used the expression ‘Les dépositions’, while the English text used the word ‘depositions’.

Held: that on a proper construction of the Extradition Ordinance the unsworn statements were insufficient, and the order nisi must be made absolute.

The following passages from the judgment of Agranat J. are of interest from the point of view of international law. “Mr. Kokia [Counsel for the respondent] asked us to answer the question in the affirmative. His premiss was that when the Court has to consider the admissibility of evidence in support of a request for extradition, it should not adopt too strict an approach. Rather should its attitude be a liberal one. This is so for two reasons: first, to prevent the frustration of the purpose of the [Extradition] Ordinance, which has as its objective the operation of a certain procedure designed, in accordance with agreements between Israel and a foreign State, to provide for the extradition of requested persons so that they may appear in answer to criminal charges; and second, in the light of the consideration that we are not concerned with a substantive trial...

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