gototop
Chapter E - Trial Proceedings (111-186) Print E-mail
Order regarding Security Provisions

Article A – Time and Place of Trial

Commencement of hearing

111. (A) The place and time at which the military court shall commence hearing a particular trial shall be determined by the president of the court or according to his instructions.

(B) Notwithstanding the content of subsection (A), a single judge shall sit in court at such times and places as he himself shall order.

Delay in continuation of trial

112. A military court is empowered to postpone its sessions at any stage of the proceedings, and to recommence them at such time and place as it orders. The court is empowered to issue any instruction concerning the remand of the defendant and his appearance at the postponed hearing.

Imposition of expenses for delaying trial

113. (A) For the purpose of this section –

“Litigant” – including the defense counsel or representative of a litigant.

(B) If a military court granted a litigant’s request to postpone the date of the trial, or if the date of the trial was postponed due to an act or omission of a litigant, the court is empowered, if it sees justification for doing so, to actual expenses in favor of the other party on the litigant on whose account the delay was caused.

(C) The military court shall not impose expenses as noted in subsection (A) until after providing an opportunity for the litigant to state his case.

Article B – Presence of Defendant

Presence of defendant in trial

114. (A) Any defendant shall be entitled to be present during all the trial proceedings, provided that he behaves properly.

(B) If a defendant behaves improperly, the court is empowered at its discretion to order his removal from the court room and to continue the trial proceedings in his absence, provided that it ensures that he shall be informed about the occurrences in the trial proceedings and enabled to defend himself.

(C) The military court is empowered, if it sees fit, to permit the defendant to be outside the court during any or all of the trial, on the hearing, for all or part of it, under conditions it shall determine.

Article C – Protocol and Translation

Recording of protocol

115. (A) The presiding judge shall record the protocol of the hearings in person or through a registrar.

(B) The protocol shall reflect everything that is said and occurs during the hearing pertaining to the trial; inter alia, the protocol shall include a concise record of:

(1) The defendant’s response to the charge;
(2) The testimonies that were heard;
(3) Details of the exhibits;
(4) The verdict, including the findings established by the court and its decision whether to convict or acquit the defendant;
(5) The sentence.

(C) The indictment, documents submitted to and accepted by the court, and any document pertaining to the case shall be attached to the protocol and form part thereof.

(D) The court is empowered, on the request of a litigant and after granting the other litigants an opportunity to state their case, to amend a record in the protocol in order to render it accurate; the military court shall consider such a request for amendment even if it is submitted after the granting of the ruling, provided that the period of appeal against the ruling has not expired.

(E) A request to correct a protocol and any decision in such a request shall be recorded in the protocol and the decision shall be signed by the military court.

(F) A protocol shall serve as prima facie evidence for the course of the trial. However, in an appeal in the case, no argument may be made against the accuracy of the protocol and no evidence may be brought of an error therein otherwise than with the permission of the military court of appeals.

(G) The military court shall sign any verdict and sentence.

Translator for defendant

116. (A) If it was clarified to the military court that the defendant does not know Hebrew, it shall appoint a translator in order to translate for him what is said during the hearing and the decisions of the court, unless the defendant willingly waives such translation, in whole or in part; the parties are entitled to object to a translator and request his replacement.

(B) Evidence presented to the military court not in Hebrew or in another language familiar to the court and to the parties in the case shall be translated by a translator, and testimony so rendered shall be recorded in the protocol in its Hebrew translation, unless the court instructs otherwise; the record of the translation in the protocol shall serve as prima facie evidence of the translated comments.

Article D – Opening of Trial

Commencement of trial

117. On the commencement of the trial, the military court shall read the indictment to the defendant and shall explain its contents to him, if it considers this necessary. The military court is empowered not do so in respect to a defendant represented by defense counsel, if defense counsel notifies the court that he has read the indictment to the defendant and explained its contents to him and if the defendant confirms the notification. The statements of the defendant and defense counsel shall be recorded in the protocol.

Explanation of Rights

118. During the trial the court shall explain to the defendant the rights granted to him for his defense, if it considers this necessary.

Plea of defendant

119. (A) The defendant shall be asked whether or not he confesses to the charge or the facts. The response of the defendant can be done through his defense attorney.

(B) The defendant may respond to this question in one of these ways:

(1) That he pleads guilty;
(2) That he pleads not guilty;
(3) That he pleads not guilty, but admits to the facts or part of the facts alleged in relation to the act for which charges were pressed.

(C) If the defendant does not respond to the question asked in accordance with Subsection (A), he shall be considered as pleading not guilty.

(D) Abstention of the defendant from pleading may strengthen the weight of the evidence of the prosecution; the military court shall explain to the defendant the results of his abstention.

Recantation of plea

120. (A) With the permission of the military court and for special reasons to be noted, the defendant is entitled at any stage of the hearing to recant his response given in accordance with Section 119(B), in its entirety or in part.

(B) If the military court permitted the defendant to recant his confession following the verdict, the court shall cancel the verdict to the extent that it is founded in the confession of the defendant, and shall renew the hearing if necessitated by the circumstances.

Provision regarding a person liable to death penalty

121. If a person is accused of a crime for which he is liable to death penalty and the military court is empowered, in accordance with Section 165(A), to impose this punishment, it shall not proceed as provided in Section 119, and the defendant is considered as pleading not guilty.

Procedures after a guilty plea

122. (A) If the defendant pleads guilty, the military court is empowered, for reasons to be noted, not to accept the plea and continue the hearing as if he plead not guilty, or as if he plead not guilty and admitted to the facts noted by the court.

(B) If the military court decides to accept the defendant's plea of guilty, the charge is considered proven and the court shall convict the defendant on the basis of his confession.

(C) Before the military court shall act in accordance with Subsection (B), it shall examine whether the defendant appropriately understands the charges and the results of his confession to them.

(D) Prior to the conviction of a defendant, the military prosecutor shall bring before the military court the facts that constitute the offense and the circumstances; if the defendant disagrees with those facts or some of them, the military court is empowered to permit presentation of evidence regarding the facts in dispute.

(E) If there are several defendants in a trial, and some of them plead guilty, the military court is empowered to convict one whose plead was accepted in accordance with this section and immediately sentence him or delay the conviction until a verdict is issued for all the defendants, but if the said defendant is called to testify in the trial, the court shall convict and sentence him prior to him being called to testify.

Proceedings after admission of facts

123. (A) If the defendant pleads not guilty admitting to the facts or to some of them or the military court decides in accordance with Section 122 to hold him as if he did, those facts are regarded as proven concerning the said defendant.

(B) Notwithstanding the aforementioned in Subsection (A), the military court is empowered to demand that the military prosecutor prove a fact to which the defendant admitted in his plea, and if the court so demands, that fact is not regarded as proven until it is proven by the military prosecutor.

Article E – Determination of guilt

Proceedings after plea of not guilty

124. (A) If the defendant pleads not guilty or the court refused to accept his confession to a charge, the court shall hear the military prosecutor and his witnesses, in addition to any other testimony it deems appropriate.

(B) If the defendant is not being assisted by a defense attorney the court shall ask the defendant, at the conclusion of the examination of each witness for the prosecution, if he would like to ask the witness any questions. The court shall note his response in the protocol.

Acquittal at conclusion of the prosecution’s case

125. If the military court sees, at the conclusion of the prosecution’s case, that the evidentiary material does not warrant the defendant responding to a certain charge, the court shall acquit the defendant from said charge.

Defense case

126. (A) If the military court finds at the conclusion of the prosecution’s case that the evidence presented against the defendant is prima facie sufficient to obligate him to respond to the charge, the court shall explain that he is entitled to testify as a witness for the defense, and then he is liable to be cross examined, or he can abstain from testifying and the results of his abstinence from testifying as noted in Subsection (B), and shall ask him if he wishes to present testimony or call a witness in order to defend himself; the court shall hear the testimony of the defendant, if he wishes to testify, and the testimonies of all the witnesses that shall be called to testify.

(B) Abstention of the defendant from testifying may strengthen the weight of the prosecution's evidence and further corroborate the evidence of the prosecution where such corroboration is required.

(C) If the defendant declares that he has witnesses, but that they are not present, the court is empowered, if it sees it fit, to postpone the hearing and order, if it sees it fit, to take measures to ensure the presence of said witnesses at a time to be determined.

Summaries

127. With the conclusion of the defense case, the prosecutor is entitled to summarize his pleas and subsequently the defendant or his defense attorney are entitled to summarize their pleas.

Immediate announcement of acquittal

128. If the military court acquits the defendant, it shall announce his acquittal immediately and the defendant shall be released if there is no reason to hold him in detention for other reasons; if the defendant was released on guarantee, he and his guarantors shall be exempt from their guarantee or the monetary bail shall be returned, as the case may be.

Conviction and sentencing

129. (A) If the military court convicts the defendant, it shall sentence him.

(B) The court is empowered to convict a defendant on an offense if his guilt becomes evident from the facts proven before it even if these facts were not alleged in the indictment, provided that the defendant is given a reasonable opportunity to defend himself; however, the defendant shall not be sentenced because of this to a more severe punishment than would have been possible had the facts been proven as alleged in the indictment.

(C) Prior to sentencing the defendant, the military court shall allow the military prosecutor an opportunity to bring evidence which may influence the type of punishment or its extent. Subsequently, the defendant is entitled to make an announcement or provide testimony and also bring evidence concerning the facts and circumstances which may to ease the punishment.

(D) When the aforementioned procedures in Subsection (B) are completed, the prosecutor, and subsequently the defendant or his defense attorney, are entitled to make their summaries concerning the measure of punishment; after the prosecutor’s summary, the court shall allow the defendant to have his final say.

Defendant who is not sane

130. (A) If a person is tried before a military court and it appears to the court that the defendant is not punishable as at the time of the action he suffered from a mental illness, the court shall rule to detain him in an appropriate place, to be determined by the commander of the Area, and to hold him there for provided that the commander of the Area is of the opinion that the defendant is ill as noted.

(B) If during the trial procedures in the military court it appears to the court that the defendant is not capable of standing trial as he suffers from a mental illness, the military court shall order that the aforementioned person be detained for a period to be determined by the commander of the Area. If two military doctors testify that the detained person in accordance with the provisions of this subsection is sane, and the commander of the Area finds that it is appropriate to do so, he shall order that the said person be tried in accordance with the law relevant to the offense of which he is accused.

(C) The commander of the Area is empowered to give, from time to time, directives as he sees fit concerning the detention of persons detained in accordance with directives of this section.

Medical examination of the defendant

131. (A) In order to permit the military court to decide if it is expedient to issue an order according to Section 130, it is empowered to order by request of the litigant or at its own instigation, that the defendant undergo a medical examination, and also if there is a need that he be admitted to a hospital.

(B) An admission order in accordance with this section shall be conducted by a psychiatrist who shall be appointed by the commander of the Area or someone empowered by him to do so; the psychiatrist shall determine a specific hospital to which the person mentioned in the order shall be admitted and the hospital shall admit him.

Article F – Witnesses

Examining witnesses

132. Witnesses appearing before the military court shall be subject to examination, cross-examination and redirect.

Witnesses in a trial of several defendants

133. When there are several defendants in one trial, the order of examination of witnesses by the defendants or their defense attorneys shall be as follows:

(1) Cross-examination – the defendants or their defense attorneys according to the order in which the defendants are listed on the indictment;

(2) Primary examination – first the defendant, or his defense attorney, who requested the witness, and subsequently the remaining defendants or their defense attorneys according to the order given in Paragraph (1).

Cautioning and swearing in the witness

134. (A) The military court shall caution the witness prior to taking his testimony that he must tell the truth and if not he shall be liable to the punishment determined in the security legislation.

(B) If the military court has reason to believe that swearing in the witness may assist in establishing the truth, the court is empowered, at its own instigation or according to the request of the litigant, to swear him in. However, the witness may declare that he shall not swear for reasons of religion or conscience, but affirm that that his testimony is true, unless the military court is convinced that the reasons given by the witness were not given in good faith.

Article G – Adjudicating Juveniles (Temporary Order)

Commencement and effect

135. (A) This article shall enter into effect on 29.09.2009 and shall remain in effect for one year from the day of its commencement.

(B) The provisions of this article shall not apply to a proceeding in which an indictment was filed prior to the commencement of this article.

Definitions

136. In this article –

“Military juvenile court” – a military court of the first instance, with a single judge presiding who is a juvenile judge, or a panel in which the presiding judge is a juvenile judge.

“Minor” – a person under the age of 16; and in regard to a suspect and a defendant, this includes a person who is under the age of 16 on the day the indictment is filed against him.

Appointment of juvenile judge

137. The president of the Military court of appeals shall assign judges – from among the military court judges of the first instance who have received appropriate training to serve as juvenile judges, in a format to be approved by the president of the Military court of appeals – to serve as juvenile judges for a period to be determined.

Judging a minor

138. (A) Notwithstanding the provisions of any law and security legislation, an offense in which a minor is charged shall be adjudicated before a military juvenile court.

(B) The provisions of this subsection shall not apply to proceedings of arrest and release under Article C of Chapter C of this order.

Adjudicating a minor and an adult together

139. (A) A minor may not be tried together with a person who is not a minor, except with the consent of the chief military prosecutor in the Military Prosecution or of someone duly empowered by him.

(B) If a minor is charged together with a person who is not a minor before a military court that is not a military juvenile court, the court is empowered, after hearing the parties, to adjudicate the case; if the military court so decides, it shall treat the minor as if it were a military juvenile court and it shall have the powers of a military juvenile court provided under this article; if the military court decides not to adjudicate the case, it shall order a separate trial for the minor and transfer him to a military juvenile court.

Minor who is brought to a court that is not a juvenile court.

140. (A) If a military court that is not a military juvenile court finds, at any stage prior to the verdict, that the defendant is a minor, it shall transfer the case to a military juvenile court, and the latter shall adjudicate the case as if it had been brought before it from the outset, and it is empowered to hear the case from the stage it had reached in the previous court.

(B) If the military court sees special circumstances that justify not transferring the case to a military juvenile court as stipulated in Subsection (A), it is empowered to continue to adjudicate it, provided that from this point onward it shall act as if it were a military juvenile court, and it shall have all of the powers of a military court provided under this article.

(C) If a military court, which is not a military juvenile court, finds after the verdict that the defendant is a minor, it shall continue to adjudicate the case as if it were a military juvenile court, and it shall have all of the powers of a military court provided under this article.

Adult who is brought before military juvenile court

141. If a military juvenile court finds during the course of the trial that the defendant is not a minor, it is empowered to continue to adjudicate the case as if it were not a military juvenile court or to transfer it to a military court, and the latter shall adjudicate it as if it had been brought before it from the outset, and it is empowered to adjudicate it from the stage it had reached in the military juvenile court.

Maintaining validity

142. A decision or ruling of a court shall not be deemed invalid solely because the defendant, due to his age, should have been tried before a different court; however, if a grave miscarriage of justice resulted from trying a defendant before a court that is not appropriate for his age, the president of the Military court of appeals is empowered to order that a court he so assigns shall conduct a retrial of the case. And the provisions of sections 157 through 162 shall apply, with the necessary changes according to the case.

Separating minors

143. (A) The military juvenile court shall conduct its hearings, as far as possible, in a place where other trials are not being conducted, or in the same place but not at the same time.

(B) As far as possible, minor defendants shall not be brought to or from the court together with non-minor defendants, and shall not be held together there.

Time for indicting a minor

144. A person shall not be indicted for an offense which he committed as a minor if two years have passed since [the offense] was committed, except with the consent of the chief military prosecutor in the Military Prosecution or someone duly empowered by him.

Indicating age of the minor

145. The indictment against a minor shall indicate, if possible to ascertain, the minor’s date of birth.

Defense

146. (A) The military juvenile court is empowered to appoint a defense attorney for the minor if it believes this would be in the minor’s best interest.

(B) Subject to the provision in Subsection (A), the provisions of Article B of Chapter D shall apply to the appointment of a defense attorney under this section.

(C) If the minor does not have a defense attorney, the military juvenile court shall help him to examine the witnesses.

Parent’s status

147. (A) A military juvenile court is empowered to order, at any time, that the minor’s parent be present in the court.

(B) Any request the defendant is entitled to submit to the military juvenile court may also be submitted on his behalf by the minor’s parent or by a person the court has approved for this, and they are entitled to examine witnesses and present arguments in the minor’s stead or together with him.

Report

(A) If a minor is convicted, the military juvenile court is empowered, if it deems it necessary for the purpose of sentencing the minor, to demand a report in writing from an officer of the Social Welfare Affairs staff at the Civil Administration or from a person appointed by him for this purpose, regarding all of the following, to the extent that it is possible to determine:

(1) the minor’s past;
(2) the minor’s family situation, with complete details, as far as possible, about his parents, spouse, children, brothers and sisters;
(3) the minor’s economic situation;
(4) the health situation of the minor and of the members of his family;
(5) special personal circumstances – if such exist – that led him to commit the offense.

(B) In the report stipulated in Subsection (A), the person who prepares the report is empowered to advise the court regarding the chances of rehabilitating the minor.

(C) A copy of the report in accordance with this subsection shall not be provided to the parties in the case or to their representatives unless the court instructs otherwise. However, the prosecutor and the minor’s defense attorney are entitled to examine these documents in the court file.

Detention centers for minors

149. (A) A minor shall not be held in detention or imprisonment except in a separate prison or jail facility for minors, or in a wing of a general prison or jail facility provided that the wing is completely separate, designated for minors only and without any access between it and the other wings of the prison or jail facility or their inhabitants.

(B) Notwithstanding the provisions of Subsection (A), it is permissible to hold a minor at a police station, provided that he is held separately and there is no contact between him and non-minor suspects or prisoners.

Article H – Appeal

Ruling

150. For the purpose of this section

– “ruling” – including any decision of the military court which ends the hearing of first instance, and including:

(1) The decision in accordance with sections 130 and 180;

(2) The decision of the court to annul the indictment;

(3) Provisions concerning conditioning of the punishment, obligation of restitution or its rates, a delay in the execution of the ruling and any other directive which can be included in the sentence;

(4) A decision by a judge of a military court not to excuse himself from sitting in a trial.

Explaining the right of appeal

151. At the conclusion of the reading of the verdict, the military court shall explain to the defendant his right to appeal the verdict, and shall notify him of the appointed time for filing the appeal.

Appeal of the verdict

152. A ruling of the military court of first instance may be appealed at the military court of appeals.

How to proceed in an appeal

153. In any matter in appeal, including the matter of the power of the military court of appeals, submission of the appeal and summoning the litigants and witnesses, matters shall be done in accordance with the applicable rules in the court-martial in Israel, with the necessary changes in accordance with the matter at hand, unless there is a different provision regarding that matter in this order.

Period of appeal

154. The period for submission of an appeal is thirty days from the day on which the ruling was given; if the ruling was not given in the presence of the defendant or the prosecutor, the term for submission of an appeal shall be counted from the day on which notification of the ruling was served to him.

Extensions

155. The president or duty president of the military court of appeals is empowered, at his own instance or at the request of the appellant, to permit the submission of an appeal later than the terms noted in Section 154.

Automatic appeal

156. The ruling of a military court of first instance imposing a death sentence shall be heard on appeal, even if the defendant did not appeal it.

Article I – Retrial

Conducting a retrial

157. The president of the military court of appeals is empowered to order a retrial in a matter in which a peremptory ruling was given, if he finds one of the following:

(1) If a military court or any empowered legal instance in Israel ruled that a piece of evidence brought before it in the said matter is fundamentally based on a lie or forgery, and there is a grounds to assume that without this evidence the results of the trial would have been otherwise, in favor of the convict;

(2) If new facts or new pieces of evidence were discovered which may, either alone or together with the material that was presented to the first court, alter the results of the trial in favor of the convict, and if during his trial these facts or evidence could not have been in the convict's possession or knowledge;

(3) If another person was convicted in the meantime of committing the same offense, and from the circumstances uncovered during the trial of the other guilty party it appears that the person initially convicted of the offense did not commit it.

(4) If the death penalty was imposed on the convict during the first trial and there is grounds to assume that the ruling was fundamentally flawed.

Request for retrial

158. (A) Permission to request a retrial is given to the convict and the legal advisor; if the convict dies – the aforementioned permission shall be given to any of his offspring, his parents, brothers or sisters.

(B) A request for a retrial shall be submitted in writing to the president of the military court of appeals within 90 days from the day on which the applicant learns of the existence of one of the aforementioned causes in Section 157, and shall detail in it the reasons.

(C) If the president of the military court of appeals finds that a delay in submitting a request was caused not due to the fault or negligence of the applicant, he is empowered to consider the request even if it was submitted after the period mentioned in Paragraph (B).

(D) A decision of the president of the military court of appeals in the matter of the request shall be issued to the convict and the legal advisor in writing, unless the president of the military court of appeals ordered that it be given in another manner.

(E) In the decision concerning a retrial, the president of the military court of appeals shall determine the military court which shall conduct the retrial; the trial shall be conducted before a military court of three.

(F) If the president of the military court of appeals refuses to order a retrial, an additional or other request shall not be submitted for the reason which formed the basis of the request which was refused.

Legal opinion prior to retrial

159. (A) In order to decide in the matter of a request for a retrial, the president of the military court of appeals is empowered to turn to the chief military prosecutor for a legal opinion in writing.

(B) For the said opinion, the chief military prosecutor is empowered to order the conduct of an investigation by the police or an examination by the committee appointed for this matter by the chief military prosecutor to be presided by a judge.

(C) If an opinion of the chief military prosecutor is given as noted, a copy of it shall be given to the applicant.

Procedures in retrial

160. In a retrial, the regular trial procedures of a military court shall be applicable, although the court is empowered to deviate from them if it decides so due to the circumstances of the matter and if it appears that this should be done for the sake of justice.

Hearing in retrial

161. (A) A court hearing a retrial is empowered to issue, without hearing additional testimonies, but on the basis of the aforementioned request in Section 158 and all other material added in accordance with Section 159 and on the basis of the pleas of the parties, a verdict sustaining the ruling originally given or annulling it, in its entirety or in part, and acquitting the convict from the offenses of which he was convicted, in their entirety or in part.

(B) If the court decides that in order to rule it must hear testimonies again, it shall annul the ruling given in the first trial and shall conduct the retrial as if it were a trial being heard for the first time in accordance with the indictment that was before the court which heard the trial the first time and shall issue its ruling accordingly, provided that the punishment imposed on him shall not be more severe than the punishment imposed on him in the ruling issued in the first trial and the punishment executed in accordance with the ruling given in the first trial shall be taken into account in the new punishment.

(C) Notwithstanding the aforementioned in Subsection (B), the court is empowered to receive as evidence testimony given or a statement taken in the first trial, if it is proven to its satisfaction that it is impossible to bring the witness who gave such testimony or made such statement, or if it is of the opinion that due to the time that has passed details were forgotten by the witness that he said or gave as noted in the first trial.

Ruling in retrial

162. All the provisions applicable to a verdict of a military court of three also apply to the verdict of the court in a retrial.

Article J – Punishment

Execution of sentence

163. A peremptory ruling of the military court shall serve as authorization for any   soldier to execute the sentence of the military court.

Penalty

164. (A) If a person was convicted before a military court, the court is empowered to sentence him to any punishment that does not exceed the punishment stipulated for the offense in law or security legislation, as the case may be, or a lighter punishment, including imprisonment and a fine together.

(B) If for the aforementioned offense no punishment but imprisonment is stipulated – it is possible to impose a fine that shall not exceed the fine determined in the Order regarding the Raising of Fines as Stipulated in Security Legislation, in the appropriate section concerning the prison sentence stipulated for the offense.

(C) For an offense in which the defendant intended to cause financial damage to another person or to obtain a benefit for himself or for another person, the military court is empowered to impose a fine upon the defendant that is four times the value of the damage caused or the benefit obtained through the offense, or the fine defined in statute, whichever is the greater of them.

Death penalty

165. (A) Notwithstanding the aforementioned in Subsection 164(A) the military court shall not impose a death sentence on the defendant, unless the court panel is composed of three judges whose ranks are no lower than lieutenant colonel, and the ruling is unanimous.

(B) The court shall not impose the death penalty on a defendant whose age at the time of committing the offense is under 18.

Provisions regarding certain penalties

166. Any provision in law stipulating a punishment of incarceration or life imprisonment with forced labor or temporary forced labor or making reference to them, shall be regarded as stipulating imprisonment or making reference to a punishment of imprisonment, as the case may be.

Serving of prison sentence

167. (A) A ruling imposing a prison sentence shall be executed upon its reading, unless otherwise ordered by the court which imposed the punishment.

(B) If the military court imposes a prison sentence on the defendant, the sentence shall include the entire time the defendant was held in detention in relation to the same offense prior to the sentencing.

(C) A convict sentenced to a prison term and on the day of the sentencing as noted or prior to it, has already served his entire sentence, shall be released immediately, notwithstanding the aforementioned in Subsection (B), if there is no other reason to keep him in detention.

(D) If a person is sentenced to a prison term, not including for non-payment of a fine, and before he serves any punishment is sentenced to imprisonment for another offense, the second period of punishment shall commence immediately and in parallel to the first, unless the military court otherwise orders.

(E) If the military court imposes in one ruling several prison sentences of different lengths, the court is empowered to order that the sentenced serve all or some of them consecutively. If the court does not rule so, all of them shall commence on the same day.

(F) In the case of a person sentenced to prison by a military court, when calculating the term of imprisonment and commuting the prison term –the provisions setting rules for commuting punishments for good behavior in prison shall not apply.

(G) A prison sentence shall be served in place of detention to be determined by the Commander of IDF Forces in the Area.

Imprisonment of minor

168. (A) When prescribing the punishment of a juvenile or young adult, the military court shall consider, inter alia, his age at the time of perpetration.

(B) Should the convict, upon the date of sentencing, be a juvenile, and the military court decides to sentence him to imprisonment – the term of imprisonment shall not exceed six months.

(C) Should the convict, upon the date of sentencing, be a young adult, and the military court decides to sentence him to imprisonment – the term of imprisonment shall not exceed one year, provided that he was not convicted of an offense of which the prescribed fixed maximum penalty exceeds five years of imprisonment.

Suspended sentence

169. (A) A military court imposing a fixed sentence, not including a sentence for non-payment of a fine, is empowered to order that the punishment, in its entirety or in part, be suspended.

(B) A person sentenced to a suspended sentence shall not serve his punishment, unless committing one of the offenses determined in the verdict (hereinafter in this section- “additional offense"), within the period determined in the sentence (hereinafter in this section- “term of probation”); The term of probation shall not exceed five years.

(C) The suspended sentence shall commence on the day of the sentencing, and if the convict serves at the time a prison sentence – from the date of his release from imprisonment. However the period spent outside of the prison due to a release on bail under this order, shall be viewed as a conditional period added to the conditional period determined by the court, unless the court orders otherwise;

Activating suspended sentence

170. (A) If a suspended sentence is imposed and the person in question was convicted within the conditional period or subsequently of another offense, the court shall order the suspended sentence to be activated and the military court is empowered to order that the activation of the suspended sentence be subject to the outcome of the appeal of the conviction for the additional offence.

(B) If the convict is convicted as noted in Subsection (A) and the military court does not rule upon activation of the sentence, the military prosecutor is empowered, no later than four months from the date of sentencing, to request from any judge of the court activation of the suspended sentence, and Section 171(A) above shall further apply to this request.

(C) A person on whom a prison sentence for an additional offense is imposed and whose suspended sentence is activated, shall serve the two prison sentences consecutively, unless the military court orders, for reasons to be noted, that the two periods, in their entirety or in part, shall coincide.

Extension of suspended sentence

171. (A) A military court which convicts a person of an additional offense and does not impose on him imprisonment for the same offense is empowered to order, notwithstanding the aforementioned in Section 170 (A) and instead of ordering activation of the suspended sentence, for reasons to be noted, the extension of the suspended sentence, or its renewal, for an additional period not to exceed three years, if the court is convinced that under given circumstances it shall not be just to activate the sentence. The court shall use its power in accordance with this paragraph only regarding the convict's first conviction for an additional offense.

(B) If the military court extends the suspended sentence for an additional period prior to conclusion of the sentence, the additional suspended sentence shall commence at the conclusion of the first suspended sentence; if the court renews the suspended sentence after the term of probation ends, the additional suspended period shall commence from the day ruling is issued, unless otherwise ordered by the court.

Order issued in sentence

172. An order issued under sections 170 and 171 shall be in any aspect as a sentence of the military court.

Payment of fine

173. A fine imposed shall be paid immediately, however, the military court is empowered to order that the fine be paid within such period and on such conditions as it shall determine.

Arrears

174. (A) A fine not paid, in its entirety or in part, at the appointed time, shall accrue arrears (hereinafter in this section – the accretion);

(B) The rate of accretion shall be fifty percent of the fine or the part of it that was not paid, as the case may be; at the conclusion of any six month period which passed from the due date – an additional fifty percent of the fine or the aforementioned part of it.

(C) An amount that was paid or collected on the account of a fine to which arrears accrued, shall be first credited on the account of the accretion.

(D) The provisions of the Collection of Public Funds Law, No. 6 of 1952 shall be applicable to the collection of a fine not paid on time, in its entirety or in part, including the arrears, as if they were public funds as defined in said law.

Imprisonment for non-payment of fine

175. (A) The military court is empowered to sentence imprisonment for non-payment of a fine for a period that appears appropriate to it, provided that it shall not exceed three years, and this in addition to any imprisonment sentenced by it.

(B) If the military court does not impose imprisonment on the defendant due to non-payment of a fine as noted in Subsection (A), the military court is empowered to impose it by order in accordance with a request by a military prosecutor which was submitted after the fine was not paid on its due date.

(C) Imprisonment in the case of non-payment of a fine shall be served after any sentence which the convict must serve. If the convict is serving a criminal imprisonment sentence at the time when the imprisonment for non-payment of a fine us imposed, that imprisonment shall be discontinued for him to serve the imprisonment for non-payment of a fine and shall be continued at the end of said imprisonment.

(D) If the military court imposes a prison sentence due to non-payment of a fine, and part of the fine is paid before the convict serves his entire sentence, the imprisonment term shall be shortened according to the relation of the amount paid to the total fine.

(E) If a person has serves a prison sentence for non-payment of a fine, he shall not be required to pay the fine and the accretion; if he served part of the imprisonment term, he shall not be required to pay a part of the fine proportionate to the period of the imprisonment sentence he served, and the accretion he shall be required to pay shall be calculated in accordance with the part of the fine for which he did not serve imprisonment.

Charge of parent or guardian

176. (A) If the convict, on the date of sentencing, is under the age of eighteen, and the military court decides to impose a fine on him, as a sole penalty or in addition to any other penalty, the court is empowered to order the convict’s father or his mother or if he is under the legal guardianship of another person, the said guardian, to pay the fine, and regarding payment of the fine, including the serving of a prison sentence in its stead – the provisions applicable to the convict shall also apply to the father, the mother or the legal guardian.

Require guarantee by parents or guardians

177. (A) In the event that the convict is under the age of eighteen, and the military court did not act in accordance with Section 176, the military court is empowered to order the convict’s father or mother or his legal guardian to deposit a monetary pledge (hereinafter in this section - guarantee) in an amount, which shall not exceed the fine that the court was empowered to sentence for the said offense, in order to ensure that the convict shall not commit an offense so specified by the court in an order (hereinafter in this section - additional offense) during a period not to exceed one year (hereinafter in this section - guarantee period).

(B) In the event that the military court ordered a person, in accordance with Subsection (A) to pledge in order to guarantee that the convict shall not commit an additional offense, in addition to the guarantee, the court is empowered to enforce compliance with the order and the pledge by ordering a fine not to exceed the fixed fine as stipulated in Section 1(A)(1) of the Order regarding Raising of Fines Stipulated under Security Legislation. The provisions applicable to a fine imposed after conviction shall also apply to the fine imposed pursuant to this section.

(C) Should the convict be convicted of an additional offense that he committed during the guarantee period, the military court shall order the realization of the guarantee, and the provisions applicable to a ruling imposing a fine shall also apply to such order against the pledger, and the court may impose a prison term in its stead, provided that the term of imprisonment does not exceed six months.

Hearing of minor’s parent

178. The military court may not enforce its power pursuant to sections 176 and 177 or 180, if said enforcement charges the minor’s parent or his legal guardian, unless the parent or legal guardian were provided suitable opportunity to present their pleas.

Seizure of assets

179. (A) If a person was obligated through a peremptory ruling of the military court of first instance or the military court of appeals to pay a fine and does not pay it, a military commander in the Area is empowered to order seizure of his assets and their sale in order to ensure payment of the fine.

(B) In order to execute the provision regarding the seizure of assets and their sale as noted in Subsection (A), a military commander, is empowered to appoint a receiver, and to determine in his letter of appointment directives concerning methods of action of the receiver, his obligations and powers and payment of his fees, and further to provide the receiver from time to time with directives in the aforementioned matters.

(C) A person who disturbs a receiver in the execution of his office shall be charged with an offense under this order.

Guarantee of defendant to desist from offense

180. (A) A military court that convicted a person is empowered, in addition to the punishment imposed or instead of it, to order that the convict provide a guarantee to desist from an offense during a period to be determined by the court, which shall not exceed three years; the guarantee shall be with guarantors or without guarantors and of an amount not to exceed the fine that may be imposed for the offense of which the convict was convicted, and all as ordered by the court.

(B) If the military court orders a person in accordance with Subsection (A) to provide a guarantee to desist from an offense, the military court is empowered to compel him to obey the order and to give the guarantee by imposing upon him imprisonment for a term not to exceed three months.

(C) If a person is convicted of an offense of which he pledged to desist in accordance with Subsection (A) and does not pay the guarantee, it may be regarded for the purpose of collecting it from the convict and for the purpose of imprisonment in lieu of payment, as if it were a fine imposed upon him by the court which ordered provision of the guarantee. If the guarantee involved guarantors, the amount not paid by the convict shall be collected from the guarantors, as if it were a fine not paid on time.

Release of minor by guarantee

181. (A) In this order –

“Minor” – a person of the age of twelve or older and under the age of eighteen.

“Military commander” – A military commander as defined in Section 3 as well as an IDF commander with the rank of major or higher, or a police officer with the rank of chief inspector or higher who was empowered for the purpose of this order by a military commander.

“Parent” – a father or mother or legal guardian.

“Linkage differentials” – an addition to the sum to be repaid, according to the rate of increase of the consumer price index in the Area, as periodically published by the staff officer for statistics at the Civil Administration.

(B) If a minor is arrested as a suspect of committing an offense of the law or security legislation and a military prosecutor confirms that there is prima facie evidence that an offense was committed, a military commander is empowered to order that he shall not be tried in a military court for the offense which of which he is suspect and which shall be detailed by the military commander in orders, provided that a monetary pledge or guarantee (hereinafter – guarantee) of the amount not to exceed the amount of the fine stipulated in Section 1(A)(4) 1(A)4 of the Fines Order be given by his father mother or legal guardian, all as ordered by the military commander in order to ensure that the minor shall not commit an additional offense for a period not to exceed one year (hereinafter – guarantee period).

(C) A parent who does not comply with the order of a military commander as noted is subject to imprisonment of one year.

(D) A person on whom a guarantee is imposed under Subsection (A) is entitled to appeal before the military court regarding the imposition of the guarantee and the amount of the monetary pledge or guarantee.

(E) In a proceeding under Subsection (D), the legal procedures and laws of evidence applicable in the military court shall apply with the requisite revisions.

(F) If a minor for whom a guarantee was provided, as noted in Subsection (A), is convicted during the guarantee period of an additional offense the military court is empowered at the request of a military prosecutor to issue an order on the realization of the guarantee, and the provisions applicable to a ruling imposing a fine upon the guarantor shall apply to the order.

(G)

(1) If a monetary guarantee is deposited, as stated in Subsection (A), and the guarantee period concludes, the parent is entitled to demand refund of the guarantee.

(2) If the parent’s request is submitted within 30 days from the conclusion of the guarantee period, the linkage differentials shall be added to the sum of the guarantee for the period from the day of the deposit until the day of actual payment

(3) If the parent’s request is submitted after 30 days from the conclusion of the guarantee period - the following shall be added to the sum of the guarantee:
(A) Linkage differentials for the period starting from the day of the deposit through the end of the guarantee period;
(B) Linkage differentials of 50% for the period starting from the conclusion of the guarantee period until the day of actual payment.

(H) The provisions of this section add to all security legislation and do not detract therefrom.

Imposing compensation

182. (A) A military court convicting a person is empowered to order him, in addition to the punishment, to pay the whole or part of the value of the damage to the party injured by the offense, as compensation for damage or suffering caused to him.

(B) The military court shall rule for compensation as noted in Subsection (A), only after providing an opportunity to the injured party and the defendant to produce evidence indicating the extent of damage.

(C) The determination of compensation in accordance with this section shall be according to the value of the damage or suffering caused as of the day on which the offense was committed or the day of awarding a decision on the compensation, whichever is higher.

(D) Compensation not paid shall be regarded as a fine not paid on time.

Compensation for defendant who is acquitted

183. (A) If a defendant is acquitted and the military court that decided on the acquittal finds that there was no basis for the charge or that there were other justifying circumstances, it is empowered to order, upon request by the defendant or on its own initiative, when delivering the verdict, that the Commander of IDF Forces in the Area pay the defendant’s defense costs and compensation for his detention or imprisonment for the charge of which he was acquitted, in a sum the court deems appropriate.

(B) If the military court which acquits does not rule upon granting an order as stipulated in Subsection (A) when delivering the verdict, the defendant is entitled, within sixty days of this date, to request the president of the acquitting court to order a hearing on this request; the hearing shall be held before the panel of the military court which ruled on the defendant’s case or before another panel composed for this purpose by its president.

(C) For the purpose of an appeal – the provisions applicable to the ruling shall also apply to an order for expenses or compensation under this section or dismissal of a request to grant it; however, a decision issued under this section after the date the ruling is read shall not extend the term for submitting an appeal or a request for an appeal in regard to the ruling itself.

(D) The military court shall issue an order as stipulated in Subsection (A) after providing the parties with an opportunity to present their pleas. If the military court is considering granting an order as stipulated in Subsection (A) due to other circumstances that justify this, it shall be empowered to permit a military prosecutor to present classified evidence pertaining to the granting of this order as noted, ex parte.

(E) The commander of the Area is empowered to define in regulations the maximum sums for expenses and compensation as stipulated in Subsection (A).

Article K - Conditional pardon and mitigation of punishment

Conditional pardon and mitigation of punishment

184. (A) The Commander of IDF Forces in the Area is empowered to conditionally mitigate the punishment of a person sentenced by a military court or to conditionally pardon him (hereinafter in this article – “conditional mitigation of punishment”).

(B) The condition under which a person sentenced by a military court (hereinafter in this article – “the convict”) is released in accordance with the directives of Subsection (A) is that the convict shall not commit an offense punishable by three or more months of imprisonment (hereinafter – “additional offense”) during the period of the condition stipulated in accordance with subsections (D) or (E) (hereinafter in this article – “period of condition”); and the Commander of IDF Forces in the Area is empowered to set additional conditions for the release of the convict.

(C) Notwithstanding the provisions stipulated at the beginning of Subsection (B), the Commander of IDF Forces in the Area is empowered to unconditionally mitigate the punishment of a convict or pardon him, for special reasons.

(D) The period of condition is the period starting from the day of the convict’s release from imprisonment and continuing until the end of the period of imprisonment he would have served had his punishment not been mitigated, provided that this does not exceed twenty-five years; unless the Commander of IDF Forces in the Area, for special reasons, decides to set a shorter period as the period of the condition.

(E) Notwithstanding the provisions of Subsection (D), if the period stipulated at the beginning of Subsection (D) is shorter than five years, the Commander of IDF Forces in the Area is empowered to set as the period of condition a longer period than that stipulated at the beginning of Subsection (D), provided that it does not exceed five years.

Canceling the mitigation of punishment – by conviction

185. (A) If during or after the period of the condition a convict, who was released in accordance with the directives of Section 184 (A), is convicted of an additional offense that was committed during the period of the condition, the military court that convicts the convict shall order the cancellation of the mitigation of punishment and compel the convict to serve a term of imprisonment equal to the duration of the period of condition; and if the period of condition was defined under Section 184 (E) – the court shall compel the convict to serve a term of imprisonment equal to the period starting from the day of his release and continuing through the end of the term of imprisonment he would have served had his punishment not been mitigated.

(B) Notwithstanding the provisions of Article J of this chapter, if the conditional mitigation of punishment is canceled in accordance with Subsection (A), the convict shall serve the remainder of the term of imprisonment he is obligated to serve following the cancellation of the mitigation of his punishment – before and cumulative to any other imprisonment imposed on him, and if he committed an additional offense during the period of condition – also before and cumulative to any imprisonment imposed on him for this offense; if a convict is serving a term of imprisonment at the time the mitigation of his punishment is canceled, this imprisonment shall be discontinued for him to serve the remaining imprisonment term he must serve due to the cancellation of the release, and [the previous term of imprisonment] shall resume at the end of this period; in this matter, “imprisonment” – includes imprisonment for the non-payment of a fine.

Canceling mitigation of punishment – not by conviction

186. (A) A committee is hereby established to review the breach of conditions of conditional mitigation of punishment issued in accordance with Section 184 (hereinafter in this section – “the committee”).

(B) The Commander of IDF Forces in the Area shall appoint officers with the rank of major or a higher rank, who are qualified to serve as judges of military courts of first instance, as members of the committee.

(C) The Commander of IDF Forces in the Area shall appoint one of the members of the committee to serve as governor of the committee.

(D) The committee shall adjudicate with a single judge, to be assigned by the governor of the committee. However, at the request of a representative of the military commander or in accordance with a decision by the governor of the committee, the committee shall adjudicate with three; a panel of three and the chairman of the panel shall be assigned by the governor.

(E) If the convict violates any of the conditions for the conditional mitigation of his punishment, the military commander’s representative, with the approval of the legal advisor, shall be empowered to write to the committee, requesting it to order the convict to be brought before it and to cancel the mitigation of punishment.

(F) The committee’s decision regarding a request to summon the convict for a hearing before it in accordance with Subsection (E) shall serve as authorization for holding the convict in custody until the committee’s final decision on the request in accordance with Subsection (E); the hearing on a request to summon the convict to appear before the committee may be conducted in the absence of the convict or his representative.

(G) If the convict violates a condition of the conditional mitigation of his punishment awarded under Section 184, the committee shall order the cancellation of the mitigation of punishment and compel the convict to serve a term of imprisonment equal to the period of the condition; and if the period of the condition was set under Section 184(E) – [the committee] shall compel the convict to serve a term of imprisonment equal to the period starting from the day of his release and continuing through the end of the term of imprisonment he would have served had his punishment not been mitigated.

(H) If the convict commits an additional offense during the stipulated period of condition, for the purposes of the committee’s decision under Subsection (G) it is irrelevant whether or not the convict has been convicted of the additional offense.

(I) Notwithstanding the provisions of Subsection (G), if a convict violates any of the conditions of the conditional mitigation of his sentence, n additional offense during the period of condition, the committee is empowered, for reasons to be recorded –

(1) To decide on the continued release of the convict under the conditions stipulated in the decision to conditionally mitigate his punishment or under additional conditions to be defined; if the committee decides to continue his release, a new period of condition shall commence regarding the convict; in this matter the “new period of condition” –the period starting from the day of the committee’s decision and lasting for the duration of the period of condition. A decision as noted shall not be issued for the same convict more than once.

(2) To order in its decision under Subsection (G) that the convict resume serving a term of imprisonment shorter than the period of condition; if the committee ordered that the convict serve an imprisonment term shorter than the period of condition – the period the convict did not serve, as per the committee’s directive, shall be a conditional period that commences with the convict’s release from the term of imprisonment he served, and shall be added to any other period of condition he has accrued.

(J) The committee’s decision regarding the cancellation of mitigation of punishment is the legal equivalent of an imprisonment warrant for the convict.

(K) The provisions of Section 185(B) shall also apply to the cancellation of mitigation of punishment under this section.

(L) The provisions of subsections 296 (F) and 296 (G), with the required changes, shall apply to the proceedings under this section.

(M) Subject to the provisions of subsections (F) and (L), the convict shall be entitled to be present at any hearing before the committee under this section.

(N) In any matter of legal procedure that is not defined in this section, the committee shall adjudicate in a way it deems to be most effective in reaching a just and prompt decision on the matter.

(O) The committee is empowered, upon the request of the military commander’s representative or the convict, to order a deferral of the decision’s implementation for a period not to exceed 72 hours from the time of the decision; in this context, Sabbaths and holidays shall not be included in the hour count.

(P) A decision taken by the committee under this section may be appealed before an appeals committee to be appointed by the president of the military court of appeals (hereinafter in this section – “the appeals committee”); the appeals committee may consist of one member; an IDF officer with the rank of lieutenant colonel or higher, who is qualified to serve as a judge in the military court of appeals, shall be appointed as a member of the appeals committee.

(Q) The appeals committee shall be vested with all of the powers assigned to the committee.

(R) An appeals hearing under Subsection (P) shall be conducted in accordance with the directives of this section, with the required changes.

 
website by: neora.pro