When Judicial Activism Trumped The Freedom Of Nir Somech

Nir Somech sat in prison for two years before being released due to reasonable doubt. What happens when judges care more about politics than justice.

Nir Somech seen with family and friends after his release from custody. Photo by Yonatan Sindel/Flash90

Two and a half years. That’s how long Nir Somech, a former Border Police commander, sat in prison for shooting and killing Ben Tal at Kibbutz Zikim in 2009, after the latter had harassed the former’s wife. Although Somech claimed self-defense, he was sentenced to 13 years in prison for manslaughter by a district court.

In July of 2013, Somech appealed to the Supreme Court at the same time he started serving his sentence. Only this week was he was acquitted by three justices due to reasonable doubt. Throughout these past two and a half years, the Supreme Court could not find the time to deliberate on this case and issue a ruling which would allow Somech to be released from prison and return to his family. Why is that?

The answer is quite simple: The Supreme Court found it far more important to rule on high-profile cases — cases that would have been categorically dismissed in any normal country. However, as we well know, judicial activism in Israel has crossed the line long ago, and the Israeli Supreme Court has turned from the highest legal court of appeals to a self-appointed political tribunal.

Running the Country from the Bench

So what has the Supreme Court been up to during this time? Well, it is a long and familiar list. For starters, the Supreme Court was able to repeatedly deliberate on the hobbies of the African infiltrators in the Holot Facility in an expanded panel, repeatedly annulling laws made by the Knesset regarding their treatment. This was a particular infringement on Israel’s sovereignty, as she is dealing with some tens of thousands of illegal infiltrators into her borders and has been trying to deport them ever since. Barring Israel’s ability to do so hampers her ability to enforce the law.

During the past two and a half years, the Supreme Court found time to repeatedly deliberate on the conscription of yeshiva students in an expanded panel, at the very same time that a designated Knesset committee was discussing a solution for the matter. This, without showing any respect for the committee or awaiting the legislature’s resolution of the matter.

The Supreme Court repeatedly discussed the appointment of Yaakov Litzman as a deputy minister serving in the capacity of minister, as well as the question of Aryeh Deri’s appointment as minister. Here, too, this was done without any legal sources, and without any petitioner being specifically harmed by this, excluding one political party that had found itself outside of the coalition government.

In recent weeks, the Supreme Court discussed the natural gas deal — once again, in an expanded panel. Like in previous instances, the Supreme Court has opened its doors to political players who have lost in the Knesset, otherwise known as a “rematch.” Due to all this excessive work that no one has asked the court to do, Nir was forced to sit in prison and his wife, Tali, and daughters were forced to manage without a husband and father for more than two years. All this, to intervene in the government’s sovereign prerogative to dispose of natural resources and allow the to be developed, for the purpose of supporting the opposition’s nakedly partisan and populist attack on said prerogative.

The bottom line is that only in 2016 did our justice system finish its proceeding regarding a death that took place in 2009, when the suspect had actually reported the incident to the police in real time.

Busy running the country; Israel supreme court. Photo by Yonatan Sindel/Flash90
Busy running the country; Israel supreme court. Photo by Yonatan Sindel/Flash90

I would like to make this clear: when Nir Somech’s appeal was filed in July of 2013, the hearing was called for July 2014, while the court registrar told the parties to file the main arguments  45 days before the hearing “in order to improve efficiency of the hearing procedure and save judicial time.” The court sessions were postponed time and again, panels were changed, while only the goal of ensuring the efficiency of the proceedings remained.

After the hearing was repeatedly postponed, and before the case was actually heard, in January 2015, Nir Somech’s council made a request to waive filing only the main arguments. This request was dismissed by the Supreme Court registrar, “taking note that the detailed appeal includes no less than 149 pages,” this is why the extent of the main arguments was limited, in order to “make the hearing procedures more efficient and to save judicial time.

For the sake of comparison, the petition filed by the Zionist Union political party regarding the natural gas, among other petitions on this matter included 136 pages, not counting appendixes. Even though the Zionist Union’s petition was filed only one month ago, the Supreme Court has been able to hold two sessions on this matter.

Precious Time

In his article on the significance of economics, Lionel Robbins defined economics as “the science of scarcity” or “the science which studies human behavior as a relationship between ends and scarce means which have alternative uses.” The Supreme Court tells itself and us that it exists in order to safeguard the rights of the citizens and to protect them from unlawful harm. This is its object and its role. The court has limited resources to so—the judges, interns, stenographers, judicial time, and size of the budget are far from infinite.

When our court deals with so many matters that are not in its jurisdiction or authority and assigns them to expanded panels, there simply are no judges left to discuss the case of an ordinary citizen who has appealed his sentence that sent him to 13 years in prison. Our court, which has been busy inventing rights that have never existed for infiltrators or terrorists, has forgotten our most basic civil rights: the right for freedom, due process, and a speedy trial. Our court, which has invented the right to family life in Israel for citizens of enemy countries, and residents of the Palestinian Authority who have married Israeli Arabs, has not invested enough time in the rights of Nir and Tali Somech to a family life.

I find it hard to avoid the suspicion that the reason for all of this is that media coverage of a criminal case does not garner glory and honor. The Prime Minister does not come to your courtroom; every word uttered by you during the procedure is not analyzed on TV. Rulings are not discussed in the Knesset, no supportive articles are published in Ha’aretz, and you cannot speak about such matters at conventions abroad. However, this phenomenon has a solution, a solution that must pass through our legislative body, the Knesset.

As long as we allow the Supreme Court to run the country for us, Nir and Tali — and many others in similar situations—will pay the price: lengthy procedures, foot-dragging, steep legal fees, and the destruction of families. The lack of demand for locus standi, along with the omnipotent reasonableness standard, overcrowds the Supreme Court with thousands of unnecessary cases. Our Supreme Court should have dealt with this on its own, but if it cannot stand up to public and media temptations, the legislators will just have to do this on its behalf.

Israeli legislators must say to Nir and Tali Somech: “We are sorry for allowing our Supreme Court to forget its role, we promise we will take care of this.”

Related articles

Leave a Reply

Your email address will not be published.

1 comments on the article