(June 21, 2019) On May 2, 2019, Israel’s Supreme Court ordered the release from prison of a blogger (the appellant) pending trial under conditions of house arrest and restrictions on internet use, subject to deposit of collateral and third-party surety. (CrimA 2847/19 Lauri Shem Tov v. State of Israel (Decision by Justice Ofer Grosskopf, May 2, 2019) Supreme Court website (in Hebrew) (click on correlating case number and year, and then on decision rendered on relevant date).)
Circumstances of the Case
The appellant was incarcerated for over two years and two months awaiting trial. She and two others had been charged in a 120-count indictment mainly with publishing articles containing verbal, defamatory, and contemptuous content against public officials and others. The indictments also included charges of publishing false reports about public servants and their families allegedly committing sexual acts and serious criminal offenses; publishing personal information and photos, including photomontages, of public servants and their families, as well as humiliating and harshly worded statements; and penetrating their private Facebook accounts and importing pictures from them. (Id. para 4.)
According to a media report, the indictment also accuses the appellant and the other two of seeking “to harass and invade the privacy” of officials involved in custody battles. Accordingly, the appellant targeted the former head of the Tel Aviv Family Law Court, who has since been promoted to the district-court level, “after he deprived her of custody of her children despite positive assessments of her that were presented to him. She published articles attacking his behavior and that of social workers dealing with her case.” (Revital Hovel, Israel Seeks 12-Year Jail Term for Blogger Accused of Slandering Public Officials, HAARETZ (June 10, 2019).)
While the other two defendants were released under conditions of house arrest, the appellant was not. Her detention had been continuously renewed, with all options presented by the appellant regarding persons capable of supervising the conditions for her release rejected by the district court and the Supreme Court. (Id. paras. 6–7.) A decision by the Supreme Court on July 11, 2018, authorizing the appellant’s release under conditions of house arrest without access to the internet and supervised by court-approved supervisors was similarly not implemented because the appellant alleged that she could not house the supervisors in her small apartment. Additional attempts to allow the appellant’s release under conditions of electronic monitoring were similarly found to be impractical. (Id. paras. 8–10.)
The appellant’s request to be released under alternative conditions—the subject of this Supreme Court decision—centers on the district court’s refusal on April 16, 2019, to hear the merits of the case instantly, and to expedite the hearing on the appellant’s request. (Id. para. 11.)
Justice Grosskopf ruled that, considering how prolonged the proceedings have been, it was appropriate to hold a hearing on an alternative to detention as soon as possible, and not to postpone the hearing in the appellant’s case. He determined that she had been behind bars for more than two years and two months “for offenses the severity of which cannot be underestimated, but are not in the highest hierarchy of severity, and do not justify such prolonged detention.” (CrimA 2847/19, para. 13 (all translations by author).)
In view of the Supreme Court’s instructions to conduct a hearing as soon as possible to examine alternatives to the appellant’s imprisonment while protecting the public interest, further delays in scheduling such a hearing, according to Grosskopf, were unreasonable. (Id.)
Instead of returning the case to the district court under guidance to speed the hearing, Grosskopf decided to examine the issue of alternatives to imprisonment himself. He held that,
[i]n this case, I found it necessary not to [return the case to the district court], mainly for a combination of two reasons: first, the appellant’s continued detention, while noting the nature of the charges against her, and noting that the other two involved in the case were released long ago; second, as will be clarified below, from the probation service report submitted in the meantime, it turns out that the directives given by this Court in the past are not applicable. Therefore, it is necessary to reconsider the alternatives, and for this purpose, there is no choice but to reach a decision in this Court (since the district court cannot deviate from the directives given in the past by the Supreme Court). (Id. para. 15.)
Grosskopf noted that, according to the probation service report, the house arrest was to be implemented in a very small apartment and the presence of additional persons to supervise the house arrest conditions would be problematic. The appellant also failed to propose persons who could perform such supervision, except for her partner, whom the respondent rejected. Both sides also objected to electronic monitoring in the absence of concurrent human monitoring. Electronic monitoring, the appellant argued, was not necessary, as she had gone through rehabilitation during her incarceration; according to the respondent, electronic monitoring is designed to support human supervision and not to replace it. (Id. para. 17.)
Concluding that the option of electronic monitoring was impractical in this case and that leaving the appellant in detention until the conclusion of her trial was improper, Gosskopf determined that the appellant should be released under conditions including full house arrest at her partner’s residence; the residence location would have no access to the internet; she would be allowed to leave the apartment for a limited time accompanied by her partner or another supervisor who would be approved by the district court; and she would not be allowed to use the internet during such outings except to conduct online searches on legal databases, as long as this were preapproved by the respondent or a court. (Id. para. 19.)
According to new reports, Israel’s state prosecutor is seeking a 12-year prison sentence against the appellant, a punishment “far more severe than in similar cases in the past.” (Hovel, supra.)
Although her alleged offenses border on freedom of expression and are considered less than criminal in substance, the state prosecution filed its indictment in district court and not in a magistrate’s court, where the maximum sentence is seven years.
The prosecutors apparently see this as a test case to augment punishment for online shaming. They also sought to keep the accused in custody until the end of proceedings, which until now has been a policy reserved for suspects who pose a danger to public safety.
While the prosecution refers to the case as the “web terror case” or “bloggers case,” Shem-Tov and her supporters call it the “avenging judges case.” One-quarter of the approximately 100 complainants are judges at various levels in the court system. Shem-Tov allegedly called one a “feminazi judge” and “a crazy slut.” Another judge said that at a protest in front of her house, demonstrators told her lawyers that she was “[child] welfare’s rubber stamp [for removing children from their parents].” Yet another judge complained that Shem-Tov wrote that [the judge had] “received the ISIS prize for efficient elimination of parents.” (Id.)