Prominent Israeli lawyer Dov Gilad Cohen explains the legal difficulties that allow Malka Leifer to continue avoiding extradition to Australia
There’s a valid extradition treaty between Israel and Australia, therefore there’s no legal obstacle or limitation on extraditing any person from one State to another, assuming he or she is set to be charged – in the requesting State – of a felony punishable by at least one year of imprisonment.
The Israeli Extradition Act specifies certain limitations relevant to individuals who have allegedly committed extraditable offenses while being Israeli citizens or residents.
But obviously this isn’t the case with Leifer. So the extradition process should have been “easier” from a procedural point of view.
If a defendant has to be present in court for their case to be heard, how can Leifer be too unwell, for such a long time, to face court, but be well enough to attend public events in between court hearings?
Extradition procedures are always subject to general civil rights and criminal procedures. According to the Jerusalem District Court protocols and decisions, after receiving a private medical opinion on the acute psychiatric adverse effect on Leifer due to the ongoing legal procedures, the district Psychiatrist (appointed by the State) found Leifer to be in a severe Psychotic phase, thus mandatorily forcing her to be hospitalised for psychiatric treatment.
Forced hospitalisation isn’t permanent and can only last while the patient is in a psychotic phase – and considered dangerous to the public. Once there’s a remission, the patient must be released, and may only be forced to undergo clinical treatment. The fact that a psychotic defendant has been released from forced hospitalisation doesn’t necessarily mean he or she is well enough to be tried.
In March 2016, the District Court terminated the extradition procedures due to Leifer’s mental state and ordered her to undergo forced clinical treatment for 10 years, while disallowing her to exit the State of Israel during that time.
The court usually asks for a formal medical opinion from the State’s district Psychiatrist, regarding the defendant’s mental state. In this case, as said, at least one formal medical opinion found Leifer to be in an acute psychotic state.
According to the court’s decisions, there were big question marks and doubts relating to her sudden mental issues, especially due to the fact that they have become acute a few days prior to court sessions. Yet the conclusion reached by the State’s specialist probably led to this decision.
Is there a point at which the court can order her to be institutionalised to receive help?
The Court may order a person to be institutionalised for medical evaluation or forced treatment, as it has done in Leifer’s case, followed by a court order to undergo forced clinical treatment.
Has this happened in any other cases?
It happens every day in domestic criminal cases. Yet I must admit this is the first time I’ve heard of such issues in extradition procures. Nevertheless, there should be no difference between the two.
There may be no judge sitting on this case now. What effect does that have?
There’s no judge sitting on the case, since the procedures have been terminated until further notice. The only way to “revive” these procedures, is to keep a close eye on Mrs. Leifer’s mental and social state and update the State Prosecution on any positive change.
If this is a strictly legal matter, can any politician ever bring pressure to bear on the case?
Is there anything the victims could do?
Assuming the general criminal procedures apply to extradition cases, then the Rights of Victims of Crimes Act 2001 should apply as well. According to this Act, the victims have the right to receive formal information from the District Attorney’s office regarding the case, it’s status, the whereabouts of the alleged offender, etc. Further, they might consider filing a civil suit against the offender.
Furthermore, they may approach the DA – demanding it ask the District Court to periodically review the District Psychiatrist stand on the offender’s mental state, and if the situation allows – refile the extradition case (which is eventually appealable to the Supreme Court). If the DA refuses, they might consider filing a petition to the Supreme Court of Justice, acting as an administrative tribunal.
Dov Gilad Cohen is a partner at Bartal Cohen Advocates, an Israeli law firm specialising in white collar criminal offences