Procès d'Azmi Bishara

Date: 21-12-2001

Minutes of the preliminary hearing in the city court of Nazareth on December 10, 2001, in the case versus Knesset member Azmi Bishara (Balad) and others.

These minutes are based on:

Interview with Azmi Bishara 08.12.01. at 9 - 11 p.m. in Jerusalem
Briefing by Bishara’s lawyers 09.12.01 at 10 - 12 p.m. in Nazareth
Participation in the court hearing 10.12.01 at 11-12 a.m. in Nazareth
Participation in the press conference held by Bishara’s lawyers following the trial at 1-2 a.m.
Interview with Bishara’s lawyers 10.12.01 at 2-3 p.m. in Nazareth
There was a failed attempt to organise an interview with a representative from the prosecuting authorities.

THE INDICTMENT

The indictment is directed against Azmi Bishara and his two Knesset assistants. They are indicted for having organised a total number of 19 visits of approx. 800 Israeli citizens to family members in Syria in the period of 05.11.00 - 25.07.01 without obtaining the permits from the Israeli authorities (the Minister of the Interior), which Israeli citizens travelling to Syria need.

In addition, one of Bishara’s assistants is indicted for having participated in one of these journeys without acquiring the necessary permit.

THE LEGAL CLAIM

The indictment has been brought in relation to the law 5709/1948 ‘Prevention and Infiltration’ and accompanying rules for ‘Foreign Travel’, article 18 d, cf. article 1, the wording of which is thus:



Article 1: No person shall go abroad save under an exit permit from the Minister of Immigration or a person appointed by him for the issue of exit permits.

…

Article 18 d: A person who attempts to commit any of the acts specified in this regulation or knowingly aids another person in the commission thereof, shall be guilty of an offence and shall be liable on conviction…



These provisions were adopted shortly after the establishment of the State of Israel in 1948, when the country was in a state of war. In reality, they are identical to provisions which were introduced by the British Mandate before the establishment of the State of Israel in 1948.

THE FOUR INITIAL CLAIMS OF THE DEFENCE

The defence put forward four initial claims, each demanding in its own right that the case be dismissed:

The Knesset vote to lift Azmi Bishara’s parliamentary immunity was illegal.
The rules and practice concerning permits for travelling abroad are too unclear to form the basis for a prosecution.
There can be no legal proceedings for assisting in an offence when no legal proceedings are carried out for the offence itself.
The indictment is politically motivated.
During the court hearing the defence was only given the opportunity to put forward these four initial claims, but not to substantiate them any further. The court decided to grant the defence 30 days to put forward its arguments in a plea. Hereafter, the prosecution has 30 days to reply. It was unclear whether there will be the possibility of a final oral procedure before the court takes a decision regarding the initial claims. However, it seems certain that such a procedure will not take place before the opening of the other case against Azmi Bishara in Jerusalem, which is scheduled to take place on February 21, 2002 (moreover, the prosecution has asked that the date be brought forward).



Re 1: The Question of Immunity

The claim is that Azmi Bishara is excepted from the regulations according to which he is charged, which means that the liftingof his parliamentary immunity was carried out on an incorrect basis and is thus to be considered illegal. The defence recalls:



Article 17: These regulations shall not apply to c) a person in possession of a diplomatic passport or a service passport of the State of Israel.

It was documented in court that, as a member of Knesset, Azmi Bishara had a diplomatic passport and this passport was presented to the court. The claim seemed to come as a surprise to the prosecution, which only remarked that the passport had been issued after the journeys to Syria organised by Azmi Bishara. The defence replied that the passport had indeed been renewed since then, but that Azmi Bishara had had an identical diplomatic passport at the time of travel.



Re 2: The Uncertainty of the Legal Provisions

The defence claims that the legal provisions called upon by the prosecution regarding permits to travel to Syria also imply that it is necessary to obtain a permit to travel to e.g. Egypt, Jordan, Gaza and the West Bank. Since everyone in Israel knows that you can travel freely to these countries/areas without prior authorisation, and since people are in fact doing so extensively, there’s uncertainty as to the validity of these provisions. The citizens do not therefore have the possibility of knowing that in some cases the provisions will be applied, while in other cases, which according to the provisions are totally equivalent, they will not. Such arbitrariness of justice cannot be tolerated in a constitutional state, and the case should therefore be rejected.



Re 3: The Lack of proportionality

The claim is that, according to normal practice, supported by a decision by the Israeli High Court, a person cannot be prosecuted for assisting a crime if the actual perpertrator is not being prosecuted at the same time. In this case, the authorities have not put charges against nor prosecuted any of the 800 persons who travelled (except for one of Azmi Bishara’s assistants, who participated in one of the journeys).



Re 4: The Case is politically motivated

In support of this claim, it was emphasized that this is the first time in 53 years of Israeli history that a member of Knesset has had his parliamentary immunity lifted in order to be prosecuted, and that it is also the first time that provisions dating back from the time of the Mandate (and which were at then viewed as rigorous and fascist) have been used for this purpose.

The fact that no charges have been put forward against any of the 800 persons travelling, but only against Bishara and his assistants, is seen to confirm the political character of the case. Prosecuting the travellers would probably prove quite unpopular; they are mostly elderly people – often 80-90 years old, whose visits were a final opportunity to be reunited with family members who had either fled or were expelled in 1948 and who therefore they haven’t been able to see for the past 53 years. It was a last minute opportunity: several of those who undertook journeys have already passed away, and many considered Bishara’s initiative as humanitarian aid. The authorities are fully aware of this fact and are therefore not charging the travellers, which confirms that the case against Bishara is political.

A final argument is that the authorities were aware of the activities in question for several months, but made no effort to act upon this knowledge before deciding to prosecute Bishara on a different basis; namely the two speeches he held on June 6 and June 10, 2001 respectively (the second trial in Jerusalem, 21.02.2001). The current case thus stands as unjustified and without substance, but as part of a politically motivated persecution.

CLARIFICATION AND COMMENTS

On the basis of briefings and interviews with the defence lawyers, the initial claims can be clarified and commented on as follows:



Generally:

If the court accepts one of the initial claims, it will not need to deal with the other claims.



Re 1: The question of Immunity

When presented with the viewpoint that it seems reasonable that the groups specified in article 17 do not fall under the provisions when it comes to their own travels, but that this could hardly have been intended to except them from assisting in other people’s travels, the defence lawyers replied that disregarding what may be regarded as reasonable or what might have been the intent, there is no basis for such a distinction in the wording of the provisions.

When presented with the noticeable fact that the exceptions have been placed already in article 17, and when asked whether the exceptions in article 17 can be regarded as bearing only on the aforementioned provisions, but not on the provision regarding participation in article 18, the defence replies that there is no basis anywhere in the provisions for such an interpretation, meaning that one must uphold that the exceptions in article 17 have a bearing on all provisions, including article 18 d.

When presented with the viewpoint that upholding the first contention only regards Azmi Bishara and not his two assistants, the defence replied firstly that in this case, the prosecution is likely to drop the charges against the other two defendants, as the case will hardly be of any interest without Azmi Bishara, and secondly that – if the charges are not dropped – the defence will contend that the immunity of a member of Knesset must also apply to his assistants.

(Comment: The last contention would probably not be upheld since the consequences would be enormous. One of the assistants is apparently a volunteer party activist, who is not on the payroll. If the immunity of a member of Knesset applies to such a person, it would be impossible to delimit the immunity).



Re 3: The Lack of Proportionality

When asked whether it is possible to draw a parallel from ordinary criminal law practice – which is probably what the Israeli High Court has done – where abetting a criminal offence is not explicitly mentioned in connection with each offence and from this case, where abetting is explicitly mentioned and therefore in itself constitutes a criminal offence, the defence lawyers reply that this is a viewpoint one would expect the prosecution to put forward, but the defence will insist that the indictment for abetting is in violation of ordinary principles of proportionality, when charges are not simultaneously brought against the persons who undertook the journeys.



Contact with Syrian Authorities

The indictment mentions (pt. A 1) that Azmi Bishara:



Over Recent years established contacts with Syrian government officials whose particulars are not known to the Prosecution, and reached an arrangement with them that would enable the entry of Arab Israelis into the boundaries of Syria.

Whether such a contact and arrangements with Syrian officials in and of themselves can form the basis of criminal charges is only indirectly indicated, since there is no mention in the indictment of any legal provision dealing with this. At the open press meeting following the court hearing, questions regarding these contacts were put directly to Azmi Bishara, and he replied that they included the Syrian President and the Minister of the Interior.



The witnesses of the prosecution

The prosecution has asked to be allowed to put 24 witnesses on the stand. It is noticeable that they are all participants in the journeys to Syria arranged by Azmi Bishara. Since Azmi Bishara fully admits his participation in these visits and since, therefore, there is no need to provide witnesses to this, the question is raised what the purpose is of the prosecution’s request to put these witnesses on the stand.

When asked whether it is conceivable that some of these participants will claim in court that they were lured or pressured into undertaking journeys, the defence lawyers answer that this is completely inconceivable. Aside from the fact that this has not happened before, the defence knows all 24 witnesses, who have all enjoyed the opportunity of seeing their relatives again.

It therefore remains an open question what the prosecution expects to gain from using these witnesses.

PRELIMINARY JUDGMENT

As mentioned, it has not been possible to arrange an interview with a representative of the prosecution in order to shed light on the case from that side.

On the basis of the available information, it is my judgment that the case for the prosecution is relatively thin, and that the Knesset majority and the prosecution have reason to regret lifting the parliamentary immunity as well as bringing the case against Azmi Bishara.

If the court takes a strict legal stand on the principal claims of the defence, the case will be rejected. Not all four claims seem equally valid, at least not as to all three defendants. However, unless the prosecution is able to present entirely new and far more solid grounds for the indictment, it seems inconceivable that the court will dismiss all four claims of the defence for rejecting the case.