An American Friend in an Israeli Court: An Empirical Perspective
Published online by Cambridge University Press: 11 June 2015
The legal concept of ‘amicus curiae’ (friend of the court) was unknown in Israeli law until 1999 when, in the course of a well-known legal decision (the Kuzli case), the Israeli Supreme Court adopted this common law concept as part of Israeli law. Almost fifteen years have elapsed since the legal precedent set in Kuzli, during which time the criteria for participation as an amicus curiae have been established.
The aim of this study was to empirically explore and analyse the ways in which the procedural institution of amicus curiae has been used and adopted under Israeli law, and the extent to which it has influenced judicial decisions. The study has used empirical methods, including the collection of quantitative data from computerised databases in Israel concerning cases in which an application to be recognised as an amicus curiae was made.
The main findings indicate that, over the last decade, the number of applications for recognition as an amicus curiae has grown steadily. Most of these applications were made by non-governmental organisations in attempting to support private individuals engaged in legal proceedings against the state or for-profit corporations. The findings reveal that the courts have approved most of these applications.
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2015
1 Retrial 7929/96 Kuzli v State of Israel 1999 PD 53(1) 529. This case dealt with an application for a retrial of the famous case of the murder of Danny Katz in Haifa, in the course of which the Public Defendant's Office was asked to participate as an amicus curiae.
2 For an account of this process, see Doron, Israel and Totry-Jubran, Manal, ‘Too Little, Too Late? An American Amicus in an Israeli Court’ (2005) 19 Temple International and Comparative Law Journal 105Google Scholar, 105–31.
3 Kuzli (n 1). At the time, the Kuzli case (better known in Israel as the Danny Katz case) caused a public sensation in Israel and, in effect, has never been removed from the public agenda. Its background was a tragic event. Danny Katz, a boy of about 14 years old, disappeared from his house in Haifa on 8 December 1983. Three days later, his naked body was found in a cave close to a small village in the Galilee. Evidence showed that he had been cruelly murdered. As a result, five suspects were tried and were found guilty based on their confessions to the police and other supporting evidence. An appeal was made to the Supreme Court, arguing that the confessions were illegally obtained. The appeal was unanimously rejected. The defendants' representatives turned to the Minister of Justice, with several complaints about the way in which the defendants' confessions had been obtained and the quality of their legal defence. The matter was reviewed by a special committee headed by Judith Karp, the deputy legal adviser to the government. The committee decided that there were problems and inconsistencies in the case, which could serve as the basis for a retrial. In short, it was claimed that the legal representation in the first trial was defective to a degree that influenced the question of innocence. As a result of the committee's conclusions, a retrial was ordered.
4 Kuzli (n 1) 552–53.
5 In the context of this particular criterion, President Barak quoted from earlier Supreme Court rulings regarding the right of a ‘Public Appellant’ to join as a formal party to a case. According to Israeli precedents, the request to join a case as a Public Appellant arises when the appellant can substantially contribute to the legal procedure: HCJ 5368/96 Pinchasi v Legal Adviser to the Government 1996 PD 50(4) 364, para 10; HCJ 5883/93 Yahalom v Police Inspector General (unpublished, 26 May 1994), para 6.
6 For example, when a public institution represents social, political or economic interests, the tendency is to allow the submission of a brief.
7 The more expert and knowledgeable the amicus is, the greater is the tendency to accept the request to submit a brief. Allowing other informed and experienced experts to enlighten the court and the involved parties with additional perspectives is in line with the traditional rationale of the amicus brief.
8 The type of case and the procedures it involves, to a certain extent, reflect its significance as well as the significance of the interests being discussed. There will be a greater tendency to allow an amicus brief in cases where the position presented involves principal legal issues.
9 Whenever the formal party represents public interests or a broad social perspective, the tendency will be not to grant an amicus the opportunity to add its position. Conversely, the more specific or narrow the perspective of the involved party, or the greater the gap between the perspectives, interests or abilities of the amicus and those of the involved party, the greater will be the tendency to allow the amicus to join the proceedings.
10 It is assumed that the earlier the submission of the request to join, the greater will be the tendency to grant the request. Early submission allows all sides to give the request sufficient consideration, avoids the potential prejudice that might be caused to either party by extending the proceedings, and is in line with the principles of natural justice.
11 Here, also, it is reasonable to assume that the more the issue at hand involves social, economic or other broad public considerations of widespread and substantial effect, the greater will be the tendency to allow the amicus to present its position.
12 It is worth noting that, with regard to the procedural aspects of the amicus device, the Kuzli ruling did not establish iron-clad principles. However, it has subsequently been decided that for a person to join as a ‘friend of the court’, the person/body must file a formal request supported by an affidavit and obtain the response of both parties in the proceedings: CA 2790/93 Eisenman v Kimron 2000PD 54(3) 817, para 32.
17 These included the following organisations: Association for Civil Rights (http://www.acri.org.il); Worker's Hotline (http://www.kavlaoved.org.il); Hotline for Refugees and Migrants (http://www.hotline.org.il); the ‘Friend of the Court’ Clinic, the academic stream of the Management College (http://www.colman.ac.il/academicunits/laws/main/clinics/amicus_curiae/Pages/default.aspx); and the Israel Bar Association (http://www.israelbar.org.il).
18 MacLennan, Richard N, ‘Interrater Reliability with SPSS for Windows 5.0’ (1993) 47 The American Statistician 292Google Scholar.
20 Not all court decisions and rulings are published in Israel's public legal databases. Many short or insignificant cases are finalised by simple rulings, which are not published. Moreover, cases are often finalised by compromise agreements or out-of-court settlements, which again are usually not reported or published in any public database.
21 For the sake of comparison, it should be pointed out that in 2007, 2008 and 2009 the numbers of new cases opened were 686,137, 653,940 and 668,270 respectively: ‘Half-Year Report of the Israeli Judiciary System: 31 December 2009–1 July 2009’, 7 February 2010, 5–6, http://elyon1.court.gov.il/heb/haba/dochot/doc/7-12_2009.pdf (in Hebrew).
22 Examples of such organisations are the Association for Civil Rights; Worker's Hotline; Adam, Teva V'Din (Man, Nature and Law); and the Movement for Quality Government.
23 Examples are the Israel Bar Association, the Association of Contractors and Builders and the Institute of Certified Public Accountants.
24 For further readings on the NGOs in the legal arena and their role in designing human rights discourse, see Smith, Jackie, Paqnucco, Ron and Lopez, George A, ‘Globalizing Human Rights: The Work of Transnational Human Rights NGOs in the 1990s’ (1998) 20 Human Rights Quarterly 379Google Scholar.
25 This conjecture is reinforced by the fact that in almost every case the amicus joined a party represented by a lawyer, which increased the possibility of public journalistic coverage of the results, or at least the existence, of the case.
26 As the courts sometimes gave more than one reason for their decisions on this matter, we have enabled a single decision to be based statistically on several parallel reasons. In this respect, the total number of reasons is greater than the number of cases that were assessed.
27 Doron and Totry-Jubran (n 2).
29 See nn 10–11 and accompanying text.
30 Lahav, Pnina, ‘American Moment[s]: When, How and Why Did Israeli Law Faculties Come to Resemble Elite US Law Schools?’ (2009) 10 Theoretical Inquiries in Law 653CrossRefGoogle Scholar. For instance, they are graduates of the New Israel Fund lawyers' programme, or have acquired part of their legal knowledge in the US.
32 Woods, Patricia J, ‘Cause Lawyers and Judicial Community in Israel: Legal Change in a Diffuse Normative Community’ in Sarat, Austin and Scheingold, Stuart A (eds), The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice (Stanford University Press 2005) 307Google Scholar.