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Introduction
The courts worldwide have implemented in recent decades IT systems for case
management, electronic filing by parties, and public access to court records.
United Nations reports on Strengthening Judicial Integrity Against Corruption
encourage the process. No doubt, such systems could have improved the
transparency and integrity of the judicial processes. However, The transition to
electronic administration of the courts amounts to a sea change in the operations of
the courts, primarily the Office of the Clerk, which is known for centuries as
central for the maintenance and safeguard of valid court records and integrity of
the judiciary. Therefore, the transition is fraught with risks.
The Israeli courts originate in courts, which were established under British rule
(1917-1948), and which were modelled after the British courts. However, over the
previous decade the Israeli courts were transformed in an unprecedented manner
with the transition to electronic administration of the courts.
2.1
The E-sign Act (2001) established the admissibility of electronic records, when the
required signatures are certified, secure e-signatures. The regulations further
established certifying authorities for e-signatures. However, through an irregular,
invalid process, Comsign LTD, a private corporation, controlled by veterans of IDF
Unit 8200 (cyber-war unit) gained almost complete control over e-signatures of the
State of Israel in general, and the justice system in particular. Additionally, invisible
e-signatures the Emperor's New Clothes were implemented in court records.
Therefore, parties, counsel, and the public can no longer distinguish between valid
and invalid court records. [2,3]
2.2
Around March 2002, concomitantly with the sudden death of Chief Clerk
Shmaryahu Cohen on the grounds of the Supreme Court, material, inexplicable
changes were introduced in IT system of the Supreme Court (Figure 2).
Figure 2: Changes in the IT system of the Supreme Court ~ March 2002. Left:
Until early 2002, all electronic decision records of the Supreme Court carried
certification, True Copy of the Original, by the late Chief Clerk Shmaryahu
Cohen, with referenced to secure file name. Right: Since early 2002, the
certification statement and any other reference to a chief clerk are omitted. On the
contrary, the disclaimer subject to editing and phrasing changes was added on all
records, and reference to a Word file.
The newly introduced disclaimer, Subject to editing and phrasing changes, by
itself, would lead a reasonable person to doubt the validity of the Supreme Court's
records. Moreover, the Administration of Courts (Freedom of Information) and
two Supreme Court Presiding Justices refused to answer: What was the legal
foundation for such changes? Under whose authority were the changes
introduced? [2]
2.3
The new regulations established the right of every person to inspect court
decisions and judgments, which are not lawfully prohibited for publication.
Whereas in the past, inspection involved paper court files, today, inspection of
records in the district and magistrate courts involves access to electronic records in
Net-HaMishpat. Extensive survey shows that the the judges routinely refuse to
abide by the law, and unlawfully deny public access to court decisions and
judgments (Figures 2, 7). Judges routinely maintain double books for the decisions
docket in Net-HaMishpat, a practice that would have been difficult or impossible in
paper court files. Such unlawful practice is particularly noticeable in cases related to
various types of government corruption.
2.4
The Regulations of the Courts Registration Office (1936), promulgated under the
British rule (1917-1948), established the Office of the Clerk of the various courts,
prescribed the authorities and duties of the Chief Clerk, including the proper
maintenance of the registers and records of the Court (Reg 4), and prescribed in
detail procedures for filing and entry of court records in general, and judgments in
particular (Reg 5,8). [7] Concomitantly with initiation of the development of NetHaMishpat, the British regulations were abolished. The Regulations of the Courts
Office of the Clerk (2004) fail to state the duties and responsibilities of the Chief
Clerk, and likewise fail to prescribe the entry of decisions and judgments, and its
procedure. [8]
2.5
The 2009 Judgment by Supreme Court Presiding Justice Dorit Beinisch, disposed
the 12 year long petition, denying challenges to the new Regulations of the Courts
Inspection of Court Files (2003). With it, the judgment declares the right to inspect
court decisions and judgments - a constitutional, supra-statutory... fundamental
principle in any democratic regime. The Judgment also indicates the expectation
that decisions and judgments be accessible to the public on an ongoing basis in
Net-HaMishpat upon completion of its implementation.
The outcome of
implementation of Net-HaMishpat was the opposite denial of public access to
court decisions and judgments with no lawful sealing.
2.6
Development of the system was initiated around 2003 under the tenure of Supreme
Court Presiding Justice Aharon Barak. The system's implementation was completed
in 2010, and the total cost of development and implementation was estimated at
about NIS 0.5 billion (~USD 150 million).
2.7 Proliferation of commercial databases of legal records
During the same decade, commercial electronic databases, providing access to court
records have been developed. The records, which are published in such databases
are web renditions, carrying various modifications and disclaimers. Obviously, they
are not valid court record. Amazingly, Israeli judges often confuse such records
with signed and certified judgments records, which are required by law, for
example, for the filing of appeals (Figure 6).
Methods
The current report is based in part on the Human Rights Alert, NGO, (HRA)
submission to the United Nations Human Rights Council [5], on the State
Ombudsman's Report 60b (2010) [1] Ombudsman of the Judiciary reports (2012,
2015) [2,3] . The report is also based on data mining of court records in NetHaMishpat and IT system of the Supreme Court, system analysis, Freedom of
Information requests on the Administration of Courts, and systematic inspection of
court records through the filing of requests to inspect records in the various courts.
4
4.1
The State Ombudsman's Report 60b (2010) (reviewed in Appendix [5]) notes that
the system was developed and implemented in disregard of the law and binding
standards, pertaining to the development of state IT systems: Contracts for system
development were unlawfully awarded to corporations with no legal tender,
contracts were signed with no specifications, development was conducted with no
core management by a State employee, systems were accepted with no independent
validation by a State employee, servers of the courts were removed from the
custody of the clerks of the courts to the custody of a corporation, and an unknown
number of individuals were issued double smart ID cards. Such failures must raise
concern regarding integrity of the system and the intentions of those in charge of its
development.
4. 2 Invalid Operation the Reconstructed Protocol Affair Report (2012)
The Ombudsman of the Judiciary Decision (2012) regarding Judge Varda
Alshech, a prominent Tel-Aviv judge, in the Reconstructed Protocol affair
provides unique insights into the scope of deceit in operation of Net-HaMishpat
only a year or two after its full implementation. The affair originated in the
falsification by Judge Alshech of hearing minutes in order to file a semi-criminal
complaint against an attorney. The Israel Bar Association called for her
immediate removal from the bench.
The Ombudsman's decision documents that Judge Alshech signed neither the
original record (Version A) nor the falsified record (Version B)... Both carried
only graphic signatures, which according to the E-sign Act (2001) held no
validity at all. The Ombudsman further describes the due to the implementation of
invisible e-signatures in Net-HaMishpat, parties, counsel and the public cannot
distinguish between valid and invalid court records... Of note no corrective
measures have been initiated, relative to Net-HaMishpat, following the rendering
of the Ombudsman's decision...
Other key failures in Net-HaMishpat operation include: Servers of unverified
identity and dubious security, invalid implementation of authentication and
certification instruments, procedures,
authorities and permissions discrimination in access to the courts, universal failure to docket summonses and
authentication records, adulterated, forged, and missing court records, double
books for dockets, and failure to enter judgments. [2, 8]
5
5. 1
Case Studies
Bank HaPoalim v State Receiver (1623/00) in the Tel-Aviv District Court
In this case, the largest bank in Israel appeared before Judge Varda Alshech, Deputy
Presiding Judge of the Tel-Aviv District Court, asking to terminate bankruptcy
protection of the debtor. Judge Alshech had for years presided in the largest
financial and corporate cases in Israel, including bankruptcies, haircuts and
dissolutions. During the hearing on September 12, 2011, dispute erupted between
Judge Alshech and an attorney who appeared before her. Judge Alshech proceeded
to file a semi-criminal complaint against the attorney with the Israel Bar
Association. In support of her complaint she filed the hearing minutes (protocol)
(Version B). As it turned out, compared with the protocol obtained by the attorney
on the day of the hearing (Version A), it was adulterated in dozens of places, in a
malicious manner. Regardless of the scandal, the Presiding Justice of the Supreme
Court and the Minister of Justice refused to take any meaningful action against her.
Moreover, even after 2012 Ombudsman's decision, which determined that both
Version A and Version B of the September 12, 2011 hearing were unsigned, invalid
court records, two September 12, 2011 protocol records continue to appear in the
case docket in Net-HaMishpat (Figure 3). However, public access to both is
unlawfully denied.
a.
b.
Figure 3: Bank HaPoalim v State Receiver (1623/00) in the Tel-Aviv District Court.
a. The Decisions Docket shows two records only, both docketed as September
12, 2011 Protocol. b. Access to the records is unlawfully denied. Attempt to view
the records prompts the message Documents is not available right now...
5. 2
a.
b.
c.
Figure 5: State of Israel v Roman Zadorov (502/07) in the Nazareth District Court
signature sections of records, which were discovered during inspection of NetHaMishpat electronic court file in January 2016 in the Office of the Clerk: a.
September 14, 2010 Verdict; b. September 14, 2010 Sentencing; c. February
24, 2014 Supplementary Judgment. The 2010 records are entirely missing any
form of signature of one of the three panel judges (Judge Haim Galpaz). For the
two other judges, graphic signatures in a negative form appear on the records. No
such signatures have ever been discovered on any other Net-HaMishpat records.
The 2014 supplemental Judgment record shows three (3) graphic signatures. The
Court refuses to permit inspection of the e-signature data...
Verdict and Sentencing records, pertaining to Zadorov, which were discovered
in Net-HaMishpat during on site inspection in the Office of the Clerk of the
Nazareth District Court, are patently invalid (Figure 5). Moreover, inspection of the
records in the Office of the Clerk of the Supreme Court, where an appeal was
purportedly conducted for some 5 years, shows that no valid judgment records were
filed with the Notice of Appeal, in disregard of the law (Figure 6).
a.
b.
Figure 6: Roman Zadorov v State of Israel (7939/10) in the Supreme Court a.
September 14, 2010 Verdict record unsigned, from unknown source, b.
September 14, 2010 Sentencing record printout from Nevo Publishing, LTD.
The Supreme Court purportedly conducted for 5 years an appeal without any valid
verdict or sentencing records of the Nazareth District Court, in disregard of the law.
Like the law of other nations, the filing of signed and certified copies of judgment
records with the Notice of Appeal is prescribed.
5. 3
public officials, including former Prime Minister Ehud Olmert and his secretary
Shulamit Zaken, from construction developers.
Following a plea bargain
agreement, Zaken produced voice recordings and accounting books of the funds,
which she maintained. Olmert was purportedly convicted and sentenced to a six
year prison term by Judge David Rosen of the Tel-Aviv District Court in hearings,
which were widely covered by media. Later, the conviction and sentence were
purportedly reversed by in an appeal by the Supreme Court. Inspection of the
electronic Net-HaMishpat court file in the Tel-Aviv District Court and the paper
court file in the Supreme Court failed to discover valid judgment records in either...
and that Judge David Rosen maintained double dockets in Net-HaMishpat (Figures
7-9).
a.
a.
Figure 7: State of Israel v Zerni et al (10291-01-12) in the Tel-Aviv District Court
an unsealed, open to the public case. a. Net-HaMishpat public access system
docket showed on April 6, 2015, sixty-four (64) decisions, most of them patently
invalid court records. b. Net-HaMishpat docket at the Office of the Clerk showed
on March 22, 2015, five-hundred-twenty-three (523) decisions. Neither docket
includes valid, lawful Verdict, or Sentencing records for former Prime Minister
Ehud Olmert, in contrast with some of the other Defendants in the same court file,
and in contrast with defendants in other cases, presided by Judge David Rosen.
Figure 8: State of Israel v Zerni et al (10291-01-12) in the Tel-Aviv District Court the JudgmentsDocketinNetHaMishpatinbothinthepublicaccesssystem
andinOfficeoftheClerkfailstolisttheMarch31,2014 Verdictrecord,
pertainingtoformerPrimeMinisterEhudOlmert.Thelistinthe
Judgmentstabincludethreerecords:a)May13,2014Instructionforthe
SupervisorofCommunityServiceinthePrisonServicetofileanOpinion
AvrahamFeiner,byJudgeDavidRosenanunsignedsentencingrecord,
pertainingtomostDefendantsinthiscourtfile.b)June9,2014Instruction
fortheSupervisorofCommunityServiceinthePrisonServicetofilean
UpdatedOpinionFeiner,byJudgeDavidRosensentencingrecord,
pertainingtoDefendantAvrahamFeiner.c)June19,2014Sentencing
datedJune19,2014,renderedbyDavidRosen,byJudgeDavidRosen
sentencingrecord,pertainingtoDefendantUriLupolianki.
Figure 9: State of Israel v Zerni et al (10291-01-12) in the Tel-Aviv District Court signaturepageoftheMarch31,2014verdictrecord,pertainingtoformer
PrimeMinisterEhudOlmert.TherecordappearsintheDecisionsDocket
tab,butfailstoappearintheJudgmentDockettab,andisapatently
invalidcourtrecord,missingthesiganturebox.
GiventhatnovalidjudgmentrecordforformerPrimeMinisterOlmertwas
andispubliclyaccessible in NetHaMishpat,Request toInspectwasfiled.
Judge David Rosen's March 18, 2015 Postit Decision (Figure 10)
confirmedthatnojudgmentspertainingtoOlmertandZakenwereentered
inNetHaMishpat.Theludicrousreasoning,whichwasprovidedfordenial
oftheRequesttoInspectwasthattherecordswerephysicallytransferred
totheSupremeCourt.Suchclaim,inaCourt,whichhasbeenelectronically
administeredforover5years,isentirelyunreasonable.Moreover, Judge
Rosen'sDecisionisunsignedandunauthenticated,wasnotdulyserved,and
failstoappearintheDecisionsDocketinNetHaMishpat.TheMarch18
PostitDecisionrecordwouldbedeemedaninvalidcourtrecordbyany
reasonableperson.
References
1.State of Israel Ombudsman, Development of IT systems of the Israeli Ministry of
Justice and the Israeli courts, Report 60b (2010) [online]
2. OmbudsmanoftheJudiciary,Decision(88/12/TelAvivDistrict)on
complaintsagainstJudgeVardaAlshechintheReconstructedProtocol
affair(2012)[online]
https://www.scribd.com/doc/291016506/
3. OmbudsmanoftheJudiciary,AnnualReport(2015)[online]
https://www.scribd.com/doc/305761710/
4.Zernik,J.,FraudulentNewITSystemsoftheIsraeliCourts
UnannouncedRegimeChange?,Proceedingsofthe15thEuropean
ConferenceoneGovernment(ECEG),(2015)pp331340.[online]
5. Human Rights Alert (NGO), Submission and Appendix for the UPR of the State
of Israel (2013)
https://docs.google.com/open?id=0B8Aa2xQGbmk5QWtZcjVQLWVFZ0k
https://docs.google.com/open?id=0B8Aa2xQGbmk5cjNxd2szX05oMkU
6. UN Human Rights Council, Summary prepared by the Office of the High
Commissioner for the UPR of the State of Israel (2013) [online]
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G12/180/12/PDF/G1218012.pdf?
OpenElement
7. Regulations of the Courts Registration Office (1936) [online]
https://www.scribd.com/doc/306634079/
8. Regulations of the Courts Office of the Clerk (2004) [online]
https://www.scribd.com/doc/306634195/
9.Roman Zadorov, Wikipedia [online]
10. Messinger, S., Order in The Court - History of Clerks of United States Courts,
Federal Judicial Center (2002) [online]
11. Posner, R., Enlightened Despot, New Republic (2007) [online]
12. Zernik, J., IT systems of the US federal courts, justice, and governance, ICEG
(2015) [online]