Matar was charged with "insulting a public servant" because of a letter that she sent to the head of the Disengagement Authority, Yonatan Basi, in which she compared him to the Judenrat (letter can be read by clicking here).
The following are Sheftel’s statements to the court:
We ask the respected Court to exercise its authority under Section 150 of the Criminal Code and cancel the charges, by allowing the pleading of the defense "on the grounds of justice." When the law is selectively enforced based on invalid considerations that are par excellence political, on the one hand, and, on the other, this selective enforcement is the result of cowardly considerations, as we shall show, then, in either case, it is inconceivable that the Court, after becoming aware of the facts that I will list, will leave in place the charge sheet, which would completely undermine the trust of the public, or at last of the decisive majority of the public, in the authorities entrusted with the enforcement of the law. Alternately, we shall argue that the facts in the charge sheet do not constitute an offense.
First, a hearing was held in this case before District Attorney Abarbanel. The latter stated during the course of the hearing that even though it was held before him, the decision whether to file a charge sheet was in the hands of the Attorney-General and the State Attorney [Sheftel submits documents for the Court to study]. I will relate to the documents, including a letter that I wrote to the Attorney-General when Nadia Matar, the Defendant, was first summoned to an interrogation, at the end of which the charge sheet that is the subject of this trial was issued.
As regards the issue of selective enforcement of the law, I refer, as I referred the State Attorney, to the well-known instance of Rabbi Yosef, that served as the basis for the decision by the Attorney-General concerning the question whether he should be placed on trial, or whether or not an investigation should be opened against him.
First, that case is tailored to the matter at hand. On Saturday night, March 18, 2000, Rabbi Ovadiah Yosef said, in a satellite broadcast: "The Holy One, blessed be He, put us to the test. He brought us Yossi Sarid. This is Satan, may his name and memory be blotted out. How can we restrain ourselves? How much can we endure? May the Lord uproot him like He uprooted Amalek! May Yossi Sarid be cursed! [...] It pains him that we do not know who Mahmud Darwish is? May the Lord smite his counsel and requite him! May the vengeances that He wreaked on Haman be wreaked on him [...] say: Cursed be Yossi Sarid, Yossi Darwish." This what was said by Rabbi Yosef.
In a decision that extended over eight pages, with an addition of an extra two pages, the Attorney-General decided - and within his decision he mentions an additional decision regarding Rabbi Yosef (referring to an instance in which Rabbi Yosef forcefully attacked the justices of the Supreme Court, including defining them as engaging in sexual relations with menstruant women, and as boors and ignoramuses as regards the Torah of Israel) - that: "In that decision I noted the policy of restraint regarding freedom of expression, exceptional to which is the potential for violence." That is, the exception for which the Attorney-General files a charge sheet consists of the potential for violence in the statement. HCJ 3807/99 was submitted against this decision, and it was stated [in the High Court of Justice decision] upholding the decision by the Attorney-General not to open an investigation against Rabbi Yosef: "We are satisfied that the decision by the Attorney-General conforms with the policy...." Does the charge sheet that is before you state that there exists any potential for violence toward Yonatan Basi, in consequence of the words of Ms. Nadia Matar? R. Yosef's statement focuses on Yossi Sarid, just like Nadia Matar's statement focuses on Yonatan Basi.
The High Court of Justice upheld the decision, even though Justice Heshin stated within the decision that the Attorney-General sounded as if he were "crushing gravel between his teeth"; nevertheless, the decision was upheld. The Attorney-General goes on to ask: "The question is not only whether Rabbi Yosef's intent was violent ... but how his words could be received by his audience?" The Attorney-General continues: "It should be recalled that Rabbi Yosef's standing is that of a great Torah scholar whose words are accepted by many," that is, the entire discussion revolved around the question of whether there was a potential for violence in Rabbi Yosef's statement, in addition to the serious element of the rabbi's influence over a large public. Such aggravating factors do not exist in the letter by Ms. Matar; her influence on the public is marginal in comparison to that of Rabbi Yosef.
As regards the decision on Rabbi Yosef's statement concerning Yossi Sarid, the Attorney-General says: "There can be no law enforcement without the principle of equality. The principle of equality means that every effort must be made to preserve it. The prosecution frequently examines instances, especially when there is a potential for violence. The principle of equality justifies that the issue [of Rabbi Yosef] be investigated." We all know that the case was closed at the end of the investigation. Rabbi Yosef, who compared an Israeli [Cabinet] minister to Amalek, and said about him that he should be uprooted like the wicked Haman was uprooted - that is, this statement contains the potential for violence. It should be stressed that, despite Rabbi Yosef's clarifications on the question of violence, he did not retract what he had said, and especially not from the aspect of insulting a public figure. Nor in the "investigation" was he even requested to come and make a statement. An "investigation" was begun, in the course of which Rabbi Yosef was not asked to give a statement under warning. Even this did not happen. ButAnd as for Nadia Matar, they called her and told her: "If you don't come within a few hours, we will arrest you."
In a country in which the Attorney-General - who today is a Supreme Court justice - decided to close the case against Rabbi Yosef, the filing of a charge sheet against my client is an act of untold wickedness and is despicable.
The culture of debate of the Jewish people, and especially of the public residing in Eretz Israel, since the Nazis took power, has been such that the people and leaders of the left, including the first President of the State of Israel, Chaim Weizmann, and the first Prime Minister, David Ben-Gurion, repeated tens and hundreds of times over the course of decades, almost two generations, and every day charged the head of Beitar, Ze'ev Jabotinsky, with being a "Hitlerist," and Menachem Begin with being "the embodiment of the worst of Nazism." I refer to Ben-Gurion's statement after the first significant victory of the Nazi Party in the German elections in 1930, which he defined as "the vociferous victory of the German Revisionists." [...] And when Ben-Gurion read the press of the Nazi Party, "he sees in it the same style and the same spirit as in the Revisionist press." Chaim Weizmann, the first President of the State of Israel, held the view that "Revisionism is comparable to Hitlerism." My client did not say: "Yonatan Basi is a Hitlerist" - but Chaim Weizmann did use that language.
In an assembly in the Beit ha-Am cinema in Tel Aviv in 1934 Ben-Gurion referred to Ze'ev [Vladimir] Jabotinsky, throughout the entire assembly, solely as "Vladimir Hitler," and from then until the death of the head of Beitar in New York in 1940, in almost every reference to him, he used the words: "Vladimir Hitler." As regards Jabotinsky's most successful disciple, Menachem Begin, Ben-Gurion wrote the shocking, and most horrible, things, that I shall read: "Menachem Begin is a clearly Hitlerist type. He will rule in Israel like Hitler ruled in Germany." This was said 15 years after the Holocaust. And this was stated by the Prime Minister! Not by some rabble. This was stated by the Prime Minister of the State of Israel! And in a country in which a Prime Minister, after the Holocaust, calls the leader of the opposition "a clearly Hitlerist type who will take power" [...] who "will rule like Hitler ruled in Germany," this charge sheet against my client is an act of untold wickedness and is despicable. This constitutes the invalid use, par excellence, of the authority granted the State Attorney by the legislator to file charges.
I addressed the Attorney-General numerous times and I referred him to actions that are completely anarchic, and that which maliciously offer aid to the enemy in his war against us, while hostile actions are being conducted against us. For example, I demanded on February 11, 2002, that the Attorney-General open an investigation against the editors of the Haaretz weekly magazine, for a scurrilous article that they published. The article, by Yigal Shohat, called for mass desertion from military service and refusal to obey orders, when mass murder was being committed almost every day in busses and restaurants. At the height of the slaughter, that left 130 dead in March 2002, Shohat wrote: "I think that every bulldozer driver has to refuse orders. ... whoever is called to serve at a checkpoint must refuse and go to jail ... I think that refusal to serve in the occupied territories has a political message." As regards pilots, he says: "Assassination on a main street by airplanes, against passersby, must stop. One must desert." This was not the insulting of a public servant. This was a violation of Section 106 of the Criminal Code: "One who urges insurrection is punishable by 15 years in prison" - the call to three or more members of an armed force to refuse an order during a military action is defined in the law as insurrection. Section 107: "Anyone committing one or more of the aforesaid actions (including insurrection) with the intent of harming the State's security is punishable by life imprisonment...." That is to say, there is no more severe attack than this, by law, a severe attack on the security of the State. The honored Justice can guess whether or not the Attorney-General decided to put the Haaretz editorial board on trial.
After that, I addressed the Attorney-General and demanded that he put on trial Yossi Beilin and his gang for the most severe crime according to the Criminal Code, the crime of treason. What is defined as "treason" in Israeli law? An action to remove sovereign territory of the State of Israel from its bounds. The punishment for this is the death penalty. This is the only crime in Israeli law that the Israeli legislator regarded with the same degree of severity as the Nazis and Nazi Collaborators Punishment Law. In 1959 the legislator came and established that anyone acting to remove sovereign territory from the bounds of the State is a traitor, and is punishable by death.
The infamous Geneva accords call, not only for the removal of sovereign territories from the State of Israel, they call for the removal of the holy of holies of the people of Israel, the Temple Mount of the Old City of Jerusalem, from the sovereignty of the State and their handing over to the Arab enemy. Yossi Beilin and his gang are plotting this in cooperation with Arafat's spokesman, who today is the spokesman of the Holocaust denier, Mahmud Abbas. Yosi Beilin also goes abroad to sell this idea in Europe and to raise money from Israel-haters. He succeeded in raising seven million dollars from Israel-haters, in order to finance the activity of the removal of the Temple Mount from the sovereignty of the State of Israel. By doing so he is liable the death penalty, under the law.
And what does the Attorney-General answer me? "This is not the criminal field that is suitable for such treatment" - this is "subject to public debate"! And the "disengagement," that is, the deportation, wasn't "subject to public debate"? The same State Attorney's office, that does not file charges against Yossi Beilin for ramified traitorous activity, in cooperation with hostile elements, files charges against Nadia Matar.
Just look: if you are an extreme leftist, then you can commit crimes that are punishable by death, but an investigation will not be opened against you! I requested of the Attorney-General, alternately, if you are not going to open an investigation, at least summon him and warn him of the serious crimes that he is committing. Nothing. But when this concerns Nadia Matar, the yardstick is completely different.
Incidentally, right now, the Prime Minister's daughter, before the cameras of the foreign press, close to the Chief of Staff's house (where she invited them) calls the IDF Chief of Staff a "murderer." The Chief of Staff is a public servant. She says things about him in this spirit, this is an insult. Was an investigation opened for this? Will she be put on trial? These are rhetorical questions the answer to which is superfluous, and, therefore, I will not answer.
I will move on to the second decision by the Attorney-General, once again concerning Rabbi Ovadiah Yosef and what he said regarding the Supreme Court. It was decided in the end not to even initiate a criminal investigation, because "restraint must be exercised in the use of the criminal instrument in a case of expressions." Where is the restraint here? The case of Rabbi Yosef was a frontal attack, replete with insults and invective, against the Supreme Court. He spoke about the Supreme Court justices in public, on satellite broadcast, and thousands eagerly drink up every word of his (and, begging my client's pardon, what she says does not have such a response), but, nevertheless, the State Attorney's Office says that "criminal proceedings are inappropriate." But they are for Nadia Matar! I would like to see what they would say if she were to say what Rabbi Ovadiah said about the Supreme Court justices. I declare that in the State Attorney's Office they are afraid of Rabbi Yosef, and therefore they do not have the courage to put him on trial. Whatever he will say, he will not be put on trial, because they are afraid. They do not fear Nadia Matar, and therefore, the rabbi will not be placed on trial, but Nadia Matar will be.
We have reached the conclusion that no one would be put on trial for such statements," the Attorney-General states regarding Rabbi Yosef. Consequently, Nadia Matar cannot be tried in the case before your honor. Otherwise, we must state that the State Attorney's Office of the State of Israel is unbridled and acts in accordance with invalid political considerations.
I say to the Court that in light of such things that were written by the Attorney-General regarding Rabbi Ovadiah Yosef ("I accept the recommendation of my colleagues that it would be incorrect to initiate criminal proceedings against Rabbi Ovadiah Yosef"), with all due respect, the honored Court cannot, in any respect, let stand the charge sheet before it now. This is intolerable.
Since the charge sheet was filed, 2,146 letters with the exact same wording have been sent to Yonatan Basi, and all have been published on the Internet. I am submitting to the honored Justice the list of letter writers. 2146. For years the State Attorney's Office has argued that the result of a public debate is that even if a crime entailing speech or writing has been committed, the criminal realm is not the appropriate realm. The Court dwells among the people, and well knows that it is doubtful whether in the annals of the State of Israel since the debate over the reparations agreement in 1951, it is doubtful whether there was a topic in the State of Israel that was as controversial as that of the deportation of 8,000 Jews, residents of the State of Israel, and the razing of their homes by bulldozers. It is doubtful whether there ever has been an event in the State of Israel surrounded by a hotter and more fiery controversy. I wish to emphasize that we are talking about a country in which hundreds of thousands are absolutely convinced that nothing like this has ever happened within the people of Israel since this people came into existence: that a Jewish government would destroy twenty-five Jewish settlements, deport 8,000 people from their homes, all in order to hand over the area to non-Jews, murderers, knowing in advance that those murderers would fire Kassams at Sderot and Ashkelon from the territory that they would be given.
This entire public, that is also the most Zionist public in the State of Israel, this entire public regards this deportation as one of the most horrible acts that Jews have committed against a Jewish public. To bring the criminal law into this controversy, and in such a selective manner? When you are from the right, if you say something, you immediately find yourself in the Defendant's dock. When you are in the left, if you commit crimes of treason that bear the death penalty, they will say that this does not belong to the criminal realm!
As regards the term "public servant": "public servant" must be interpreted differently from the interpretation given it during the Mandatory period. "Public servant" must be given a limiting interpretation. A public servant is a functionary, and not a political individual. The deportation administration that is called the "SELA Administration" is a political body that is headed by a political person (Yonatan Basi was candidate number 8 on the Meimad Knesset list), and he has a kippah on his head [i.e., is religious]. There was the desire to show that the deportation was carried out by a kippah-wearer, and so he was appointed. This is an appointment of an outstandingly political nature. It is inconceivable that this will not result in his being criticized, even in a harsh manner, in the best manner of the tradition laid down for us by the founding fathers Weizmann and Ben-Gurion - that is, comparison with images from the Holocaust. My client did not go that far, Ms. Nadia Matar has her limits. She checked herself, and she did not say that Yonatan Basi is a "Hitlerist," that Ben-Gurion said about Begin dozens of times. She checked herself. And if the State Attorney's Office nonetheless chooses to disregard the limiting interpretation of "civil servant" when Nadia Matar is concerned, then the impression is further strengthened that this is selective enforcement of the law, based on political grounds.
I now refer the honored Justice to the statement by the retired Justice Menachem Elon (the decision known as HCJ 1635/96 45(1), p. 749), in response to the statement by Justice Barak, who had said: "As judges, we do not act in accordance with our political worldview ... even when emotions rage around us." The honored Justice Elon responded in that decision to this statement as follows: "I am jealous of my colleague, who attained this [level], as he attests of himself ... but what can I do, the humblest among the clans of Israel ... I am not chiseled in the rock ... I am somewhat exposed, against my will, even to contemporary political emotions and forces. Despite all my wishes and efforts, I sense them, to some degree, even when I sit in judgment."
If the Deputy President of the Supreme Court admits in a decision that he cannot evade his political worldview, even when he sits in judgment, and this influences him, then how much more so does this apply to the State Attorney's Office, that is headed by one of the former leaders of Peace Now. It therefore is inconceivable that the decisions of the State Attorney, a former senior leader of Peace Now, are not influenced by his political orientation. If the honored Justice Elon admits that he cannot free himself from his political views when he writes decisions, then we certainly should not assume that one of the heads of Peace Now, who serves as the State Attorney, when he comes to decide in the matter of Nadia Matar, who, for him, is beyond the pale politically, whether to place her on trial on a matter related to the deportation, we would be burying our heads in the sand if we were to say: "The State Attorney's Office is completely free of political considerations." Really - there's no end to this!
The conclusion to be drawn from all this is unequivocal. The existence of criminal proceedings resulting from the charges pressed against Nadia Matar means the granting of legitimacy to things that should not be done, this is a blatant misuse of the State Attorney's powers to file charge sheets. This is all a consequence of selective enforcement of the law, based in invalid political considerations and/or in cowardice.
Nadia Matar, who is sitting here in the courtroom, will not be deterred by any charge sheet issued against her in this case, and she will continue her activity on behalf of Eretz Israel. And certainly in everything pertaining to speech. What is likely to happen is that the criminal proceedings against her will result in an intensification of the loss of faith in the entire law enforcement system within large circles among the Israeli public. The Court must not allow this, especially when we are speaking of the public's loss of faith due to the selective application of the law. I therefore ask the honored Court to exercise its authority under Section 150(a) and cancel this charge sheet.
I am convinced that there is no need to refer your honor to the rulings, your honor is aware that more than one person in Israel has been acquitted "on the grounds of justice." One of them, which is not surprising in the least, is Mr. Yigal Tumarkin. Even less surprising is the State Attorney's Office not appealing his acquittal. Actually, to be precise, the State Attorney's Office did not want to file charges against him for having said: "When I see the ultra-Orthodox, I begin to understand the Nazis." The State Attorney's office refused to place him on trial for such a statement. The late Prof. Rosen-Zvi intervened, and brought about a change in the decision, and then it was said in the decision: "So much time has passed ... 5 years. Yigal Tumarkin could have been convinced that he had been forgiven and that everything was in order, and now, once again, he finds himself on trial." On this basis, the charges were dropped, in accordance with Section 150(a), "on the grounds of justice." I think that I attached this decision, and it is before your honor. And the State Attorney's Office, surprisingly, did not appeal this decision. It was quite happy. And, it should be stressed, can what Tumarkin said be compared at all to Nadia Matar's words? His statement, by any criterion, is twenty times more severe!
I will move on to another section: that the facts in the charge sheet do not constitute a crime.
Here Justice Mintz stopped Adv. Sheftel and asked the prosecutor, Adv. Padan, to respond. We will cite only the beginning of Adv. Padan's statement to the court, that is reflective of all his arguments:
Adv. Padan: There is no question, and this is true as regards crime involving the freedom of expression, that the prosecution acts with restraint and extra caution. Nonetheless, we think that public discourse also has limits, we are not in a jungle [...] we are in a state of law. Specifically, we think that here it is correct to place on trial for several reasons, that, in our opinion, distinguish this case from other instances of improper and ugly expressions against which we did not initiate [criminal proceedings]. Mr. Basi is a public servant and was not elected by the public, he is a public servant in the civil service, which is professional and apolitical. [...] Public servants are, to a certain degree, defenseless, and therefore the law protects them with special legal provisions. Attacking them harms their ability to function.
Following the statement by the prosecutor, Adv. Sheftel was asked once again to explain the essential difference between Yonatan Basi and an ordinary public servant:
Adv. Sheftel: It is totally clear that the purpose of the law is to protect the average public servant who comes into daily contact with the citizen, and when the citizen does not receive from the former the service or the attitude that he expects, the public servant will not fall victim to invective and curses from the citizen that are insulting. The purpose of this section is in no way to intervene in the public political discourse on political topics that are at the center of the public debate in the country. In no way is this section to be used to catch in the criminal net a statement that is clearly nothing more than political criticism of the crime of deportation. All that was said about Yonatan Basi was stated from a purely political aspect. Consequently, the instrument of the use of any section of the Criminal Code concerning the insulting of a public servant is not the suitable and proper instrument, in terms of the aim and purpose of this instrument. I stress, once again: the appointment of Yonatan Basi was clearly political because of his wearing a kippah, because of his being responsible for the deportation of 8,000 people, the majority of whom are kippah-wearers. He was not part of the state bureaucracy. He volunteered for this mission. We are not talking about an official in the public bureaucracy who transferred from Department A to Department B. He became a public servant only in order to deport 8,000 people from their homes and to destroy the settlements of people, the majority of whom, like he is, are kippah-wearers.
After the Soviet Union detonated an atomic bomb in 1949 and the United States searched for spies, they looked for a scapegoat [...] and who did they find? The Jews. In the United States in the 1950s, nine of every ten Communists were Jews. In the trial of the Jewish Communist couple Julius and Ethel Rosenberg, so that it would not be claimed that they were anti-Semites, the Americans took care that the prosecutor would be a Jew, and likewise all the jury, the head of the special investigations team, and the like. [...] In short, the judicial elimination of the Rosenbergs was effected by the American judicial establishment by means of Jews, intentionally. And so, too, with the appointment of Yonatan Basi. Basi was appointed on account of his kippah, so that people would not say that someone was brought from the left to implement the mass deportation. And Basi volunteered. He was not a public servant beforehand. Unlike a regular civil servant, he could not be compelled to implement the crime. He, however, volunteered for the task, and ran to it. Of course, he received a great deal of money for this "volunteering." This was not total volunteerism.
Consequently, criticism directed at him is political, and within the context of our culture of debate. The section of the Criminal Code concerning the insulting of a public servant cannot be used to interfere in the very heart of the Israeli political public discourse in such a crude, heavy-handed, and dictatorial manner, that is characteristic of the darkest regimes. This is inconceivable. [...] My colleague began his statement with his response to my first argument, and said that we are not in a jungle, and for this reason there is law. When the law is applied in the form of selective enforcement, then we indeed are in a jungle; it is not for this reason that the law exists.
After Adv. Yoram Sheftel's statement, Justice Mintz turned to the prosecutor. His statement, however, was not recorded in the protocol. The judge asked the prosecutor questions that, in short, hint that it would be worthwhile for the prosecutor to reconsider the wisdom of continuing with this trial, whether it would not be preferable to bury the case and not continue and give Nadia Matar's statement much greater publicity than what it had received until now.
The date was set for the issuing of the decision, September 10, 2006, at 10:30 AM.
The following day, Adv. Sheftel sent the following addition:
Short supplement to the arguments of the Defendant's attorney concerning "on the grounds of justice" and/or the facts in the charge sheet do not constitute an offense
The honored Court is requested to accept the short supplement to the argument on the above issue.
1. On the day following the Court session, a malicious text in the form of a traitorous and wicked article written by Gideon Spiro was brought to the attention of the Defendant's attorney. This article was published in the local Jerusalem newspaper of Maariv, Kol Hazman, on August 3, 2001 ("the Article"). The relevant passages from it are attached, as Appendix 1.
2. In one paragraph in the Article, Spiro advises the murderers of the Hamas how to act effectively against the State of Israel and the IDF in the murderous terror war that they are waging against the State of Israel.
In the second paragraph, Spiro "explains" why Chief Rabbi Y. Lau is worse than Pope Pious XII, may his name and memory be blotted out, who, as is known, did not open his mouth publicly, and not even in private, concerning the destruction of six million Jews, throughout the course of the Second World War.
3. The Article was brought to the attention of the Attorney-General on August 21, 2001, with the demand to place Spiro on trial for a series of crimes, most of them several times more serious than the offense for which the Defendant is standing trial. Any further words would be unnecessary to show that stating that the Chief Rabbi of Israel is worse that Pope Pious XII, the accomplice of the Nazis in the destruction of European Jewry by his silence, is a senseless act that also entails the clear offense of insulting a public servant.
4. The Attorney-General writes in his response from November 29, 2001, in which he rejects, as expected, the request to place Spiro on trial, that the request was also examined by the State Attorney, as well as by the signatory to the letter [i.e., the Attorney-General], and Spiro's statements in his Article are "aggravating and harsh." Nevertheless, due to the "policy of restraint of the Prosecutor's Office regarding offenses that detract from freedom of expression," it would be inappropriate to place the author of the libelous document on trial. The response of the Attorney-General is attached as Appendix 2.
5. (a) Thus, once again we see that when we are dealing with the most extreme, detestable, and traitorous of the leftists, then the Attorney-General and the State Attorney apply to them to doctrine of a "policy of restraint .. regarding offenses that detract from freedom of expression."
In contrast, when we are dealing with patriots, pure Zionists, pioneers, and settlers of liberated portions of the homeland, then, as regards "offenses that detract from freedom of expression," the Attorney-General and the State Attorney apply a ruthless policy of filing charges.
(b) Any objective observer from the side must, therefore, reach the inevitable conclusion that the selective enforcement of the law, in a clearly biased manner, because of invalid political considerations, lies at the basis of the different results of the instance of Spiro and that of the Defendant; and/or, alternately, according to the view of the State Attorney, the facts in Spiro's case do not constitute an offense, and therefore, the facts in the case of the Defendant, as well, do not constitute an offense.
6. Consequently, if only on account of the above, and certainly so together with all that was argued previously before the honored Court, the charge sheet filed against the Defendant should be canceled, and/or it should be established that the facts listed in it do not constitute an offense.
Yoram Sheftel, Adv.
Attorney for the Defendant Nadia Matar