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The Public Defender Office – a Summary of 20 Years*

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The Public Defender Office – a Summary of 20 Years* The Public Defender Office – A summary of 20 Years Historical Background to the Establishment of the Public Defender Office In 1990, Supreme Court Justice Dov Levin expressed the following heartfelt plea: “If only we could establish by law, alongside the Prosecution who represent the State, a general Public Defender Office available to defendants. This would have been the appropriate solution by which to both help individual defendants and provide for a legal system which facilitates justice. Currently this solution is not realistic, and represents only wistful desires”.1 Prior to the establishment of the Public Defender Office, the vast majority of detainees and defendants in Israel were tried without representation or legal counsel. Government powers which encompass severe harm to the liberty and dignity of individuals, such as arrest, measures during interrogation and the imposition of prison penalties, were all exercised against suspects and defendants who lacked representation. Suspects and defendants with no knowledge of the law or legal vernacular, who were unable to express themselves properly, were consistently brought before the Court and expected to contend with excruciatingly complex procedure and the Prosecution. Data from various sources testify as to the pervasiveness of the problem of defendants being devoid of representation in criminal proceedings. About 60% of defendants in Magistrate Courts were not represented in their trial, whilst approximately 85% of the minors appearing before Juvenile Courts and 80% of detainees in court hearings pursuant to the police request to extend the period of detention, also lacked counsel. The prominent inequality between the center and north and south of Israel was especially troubling in this regard. The proportion of defendants who were forced to face their trial without representation in the northern and southern districts was significantly higher than those in the central ones. During this period, Israel used the “assigned-counsel” method, by which the Courts appointed counsel from the private sphere to represent the defendant. This method was very This is a translated segment taken from Public Defender Office Annual Report for 2015 (2016). 1 Criminal Appeal 134/89 Abargil v. State of Israel, Padi 44(4) 203, 207 (1990). problematic both at the structural and practical levels.2 It was blighted by uncertainty and inconsistent application, and was subject to the discretion of the presiding judge. For example, in some circumstances a judge might appoint counsel based on a list that they had compiled themselves. Alternatively, a lawyer who happened to be present in the courtroom was appointed. In other cases, the court secretariat would appoint an attorney in accordance with its own considerations. This method created problematic dependence between the appointed attorney and the appointing court, since payment of fees to the attorneys (as well as additional expenses such as those for expert witnesses) was subject to the court’s approval. No regulatory body regularly supervised the professional abilities of the attorneys or the quality of representation they provided. These appointed attorneys were often stigmatized as “government attorneys” who provided low-quality services and did not act in the best interests of their clients. This situation received extensive public criticism, including in Supreme Court rulings. In 1981, the Minister of Justice at the time, MK Moshe Nissim, appointed a Public Committee to inspect the matter of legal aid in the field of criminal law. The Committee was headed by a retired Justice David Bechor. The Bechor Committee Report criticized the assigned-counsel method, as well as the fact that many defendants in Israel were not represented by an attorney. It also criticized the fact than many defendants who were represented by appointed counsel, received sub-par representation. The Committee called for extensive reform of the system and suggested the establishment of a 'public defense' system, whilst increasing the scope of eligibility for representation.3 The Bechor Committee Report was based largely on a study commissioned by the Ministry of Justice and written by Prof. Eliyahu Harnon of the Sacher Institute for Legislative Research and Comparative Law Institute of The Hebrew University.4 The extensive study found that judges in the State of Israel hardly used their discretion to appoint counsel for defendants, specifically poor defendants. It also found that 2 See more in: Yoav Sapir “Illusions of Progress: The Right of Representation from the British Mandate Period to the 80’s” Trends in Evidence Law and Criminal Procedure - A Collection of Articles in Honor of Professor Eliyahu Arnon 397, 440-441 (Anat Horowitz and Mordechai Kremnizer, Editors, 2009). 3 The Report of the Committee for Inspection the Issue of Legal Aid in Criminal Matters (1985). 4 Eliyahu Harnon Legal Aid in Criminal Matters: Comparative Theory and Practice (1983). the lack of representation violated the rights of detainees and defendants and the ability to provide them a fair trial.5 In 1993 the process of establishing the Public Defender Office began, based on the recommendations of the Bechor Committee. These efforts were led by the Minister of Justice at the time, Prof. David Libai, and Prof. Kenneth Mann, who established and directed the Criminal Legal Aid Center in Tel Aviv University. On June 21, 1995, the Governmental Public Defender Office Bill was submitted. The bill provided for the establishment of the Public Defender Office within the Ministry of Justice, which would “systematically provide legal aid in criminal matters”.6 At the same time, a similar bill was filed by the Constitution, Law and Justice Committee of the Knesset.7 On November 20, 1995, the Knesset approved the Public Defender Office Law without objection on second and third round of votes. The Minister of Justice at the time, Prof. David Libai, presented the law to the Knesset assembly and inter alia stated as follows: “Your Honor, Chairman of the Knesset, Chairman of the Constitution Committee, Knesset Members, for two years we have been working in coordination with the Government and Knesset Members on the establishment of a Public Defender Office in Israel. We ask to give added weight and actuality to the rule that everyone is equal before the law. Equality is measured by the ability of every defendant who so chooses, especially if facing imprisonment, to have a defender, an attorney that would provide legal counseling and speak for him in court. Today, we actualize and institutionalize the right of every suspect and defendant to be represented by a counsel before the court. We establish today a special unit in the Ministry of Justice, a unit that will have maximal independence and that will be responsible for operating public defense in Israel”. 5 This, based on a field study conducted by Magistrates Court Judge at the time, and later the President of the Supreme Court, Justice Miriam Naor. 6 Bills 2410, p. 502. 7 Bills 2414, p. 522. The first office of the Public Defender was opened in 1996. Prof. Kenneth Mann was appointed as the first Chief Public Defender. Within several years (by 1999) the Public Defender Office was fully deployed in Israel in the Tel Aviv and Center Districts (currently operating as two separate entities, Tel Aviv and Center), Jerusalem, Haifa, South (Be’er Sheva), and North (Nazareth). Principles of the Public Defender Office Law The Public Defender Office Law, 1995, was enacted on the basis of a value-based approach which holds that a just, proper, and fair legal procedure necessitates professional and adequate representation by an attorney. The importance of this approach is magnified when the liberty, dignity, and reputation of an individual are at stake, following a process in which the defendant finds itself in an inherently inferior position, facing powerful systems like the Police and the State Attorney. The foundational principles of the Public Defender Office Law are intended to solve the institutional problems replete in the method which preceded the establishment of the Public Defender Office. Independence: One of the main problems facing the formulators of the law was, as noted above, the problem of the appointed defenders’ dependence on the Court. Therefore, the Law enacted that appointment of counsel would be made by the Public Defender Office, and that the Public Defender Office shall be a department within the Ministry of Justice in the administrative sense. However, given the importance of guaranteeing that the Public Defender Office remains a professionally independent body, and in view of its role of representing individuals vis-a-vis State authorities, it was crucial that the legislator ensure its independence in order to facilitate the fulfillment of its role. As such, the legislators were forced to adopt mechanisms which guarantee the independence of the Public Defender Office from the other authorities, specifically the Attorney General and Chief State Prosecutor, who head the General Prosecution apparatus. One of these mechanisms is the Public Defender Office Committee. It was determined that the activities of the Public Defender Office would be supervised by a committee composed of the following bodies: the Minister of Justice (Chair), a Former Supreme Court Judge, an expert in criminal law, an attorney chosen by the National Israel Bar Association Council, and an attorney appointed by the Minister of Justice with the consent of the Israel
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