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Ombudsman of the Israeli Judiciary
About
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Date: June 22, 2006
An Israeli Innovation
Human frailty, being a constant of man's existence, dictates that any system of justice operated by men will be fraught with error. Mistakes of law and fact by judges and juries can be corrected, hopefully, by appeals. However, in any system of law which prides itself upon an independent judiciary there remains the thorny problem of how to restrain and correct the misconduct of bad behavior of judges while exercising their judicial functions. The comportment expected of a judge is to behave in a manner that is above reproach in both professional and private life. Democratic legal systems have provided methods of calling a judge to account when he steps out of line and may use the ultimate sanction of dismissal, though this is rare. Because the expected standards are above the norm, the consequences of such errant conduct are often out all proportion to the intrinsic seriousness of the lapse in question. In an ideal situation the judge should be accountable for his conduct and yet able to preserve his independence while exercising his judicial functions.
Israel is a vibrant, dynamic parliamentary democracy and has adopted an adversarial common law legal system. There are no juries and all decisions and judgments must be reasoned. Judges are appointed by a nine member committee consisting of three judges of the Supreme Court (including the President), the minister of justice and one other cabinet minister, two members of the Israeli parliament and two representatives of the Bar association. Judges, once appointed, may only be removed from office by a decision of a Disciplinary Court or by a vote of seven of the nine members of the appointments committee. Dismissals are extremely rare and normally a judge will be persuaded to resign his post rather than be forced from office. The retirement age for all judges is seventy years.
Israeli judges have an inordinately heavy case load, far in excess of that of their European or American counterparts. Some 500 judges deal annually with more than one million new cases. Extensive computerization case managements and the use of ADR have done little to reduce the burden. Notwithstanding, the Israeli public has retained a high degree of trust in the integrity of the judges and legal system, and the Supreme Court in the particular is highly respected.
That being said, recent years have witnessed a groundswell of dissatisfaction, especially with regard to the length of time involved in litigation and extensive delays in handing down judgments. Complaints would be addressed to the Director of the Courts who had no formal statutory authority and as a result his powers were somewhat restricted. Rightly or wrongly the public perception was that this was an "in house" investigation and not sufficiently objective. A greater measure of judicial accountability was sought.
This then is the background of a unique innovation set in motion by passing the Ombudsman for Complaints against Judges Law, 2002, which came into force on 1st October 2003. An independent Ombudsman's Office was established, with extensive powers to investigate complaints issued by members of the public against judges, regarding their conduct and the manner in which they conduct trials. Mrs. Tova Strasberg-Cohen a former judge of the Supreme Court was appointed as the first Ombudsmen. She heads a small staff consisting of both lawyers and retired judges. The Ombudsman has authority to investigate complaints against all serving judges in all courts, including religious and military courts and the Supreme Court. Although its budget is part of the Ministry of Justice, the Ombudsman is totally independent and free of executive interference. The Ombudsman has been granted extensive investigative powers, including the right to subpoena witnesses, although thus far the Ombudsman has enjoyed co-operation from all parties concerned, not least from the judges themselves.
The object of the Ombudsman is to supervise and improve the unique judicial service rendered to the public without limiting or hindering the judicial independence. Thus the law specifically states that the Ombudsman has no jurisdiction to interfere with or amend judicial decisions - a power reserved exclusively to the courts of appeal. The experience of the first two years has shown that many disappointed litigants have complained to the Ombudsman hoping for a revision of the results of cases only to be referred to their right of appeal. Statistics of the first year show a large number of complaints to be prime facie with no merits or foundation. Such complaints (449 out of the total of 1104 in the year 2005) were dismissed without requiring judge's response. Almost a quarter of these cases were complaints about the procedure and not against an individual judge. In 655 cases the complaint was of sufficient merits to justify further investigation, including a response from the judge. The judges received an extract of the complaint and were required to comment orally or in writing. Some of the judges were interviewed. After inquiry, 433 complaints were found unjustified and 222 upheld (20% of the total complaints submitted). The decision of the Ombudsman is final and there is no appeal. The law specifically states that the decision cannot form a basis for a claim, nor can it be adduced as evidence in any proceeding. All investigations conduced by the Ombudsman's Office are strictly confidential and none of the decisions are made public by the Ombudsman. The ombudsman submits an annual report omitting identity details.
When a complaint is upheld a detailed decision is sent to the complainant with copies to the judge, the President of the Supreme Court, the Minister of Justice, the President of the court where the judge resides, and to the Director of the Courts. A copy of the decision is also filed in the judges personal file and will be taken in consideration in future promotions. In serious cases or a number of reoccurring complaints against a judge, the Ombudsman has authority to refer the matter to a Disciplinary Court or issue a dismissal recommendation to the Judicial Appointment Committee. The limited experience to date suggests that judges faced with either prospect prefer to withdraw gracefully, thus avoiding unwelcome publicity, though there have been exceptions.
Examining the complaints' nature helps to gauge the efficacy of the Ombudsman's contribution to maintaining the right of any litigant to due process. Broadly speaking, the vast majority of complaints relate to the following matters:
- Unreasonable prolongation of proceedings.
- Conflict of Interests.
- Excessive delay in handing down judgments.
- Inappropriate behavior of the judge during the hearing of a case; this category covers a multitude of judicial misconduct, including gratuitous and insulting remarks, lack of courtesy to lawyers and litigants, bullying parties to come to a settlement and the unnecessary use of offensive language during the hearing or in decisions.
- Infringement of the rules of natural justice such as the right to be fully heard.
- Undue interference during the course of the proceedings.
- Flaws in judicial administration such as multiple pretrial hearings and unwarranted adjournments.
- Inappropriate disclosure of a predetermined or biased view of the issue prior to proper hearing.
What is common to these errors and flaws is that with effort all can be remedied and improvements made. Judges are sometimes unaware that aspects of their personal behavior may cause offence, and are usually concerned to improve it when the matter is pointed out to them. The initial trepidation of the judges has been allayed by the manner in which the Ombudsman has sought the co-operation of all parties: the lawyers, the complainants and the judges themselves, to make this innovative law work and benefit the administration of justice in Israel.
Harvey Groves, Judge Emeritus
The Ombudsman's Office Staff
Tova Strasberg-Cohen, Justice of the Supreme Court (retired), Ombudsman
The Jerusalem Branch
Shmuel Hamdani, Judge Emeritus (retired), Deputy Ombudsman
Advocates:
Adv. Avraham Walf
Adv. Ronit Zamir
Adv. Ilan Roiter
Adv. Moran Svorai
Law Clerks:
Eyal Birenberg
Ella Eyal
Administration:
Zaheva Hazan
Naftali Geraffi
Hedva Menahem
Mazal Yechezkel
The Haifa Branch
Harvey Groves, Judge Emeritus
Administration:
Einav Kedmi
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